1. Labor Commissioner's Office

Frequently Asked Questions on LCO’s Role in Supporting Immigration-Related Prosecutorial Discretion

► en Español

The Labor Commissioner’s Office (LCO) enforces labor laws to promote economic justice and ensure a just day’s pay in every workplace in the State. Effective investigation of complaints and enforcement of workers’ rights depends on the cooperation of workers. LCO enforces labor laws and protects workers’ rights regardless of the immigration status of the impacted workers. LCO does not enforce immigration laws. Therefore, LCO does not ask about a worker’s immigration status. Workers in California are protected regardless of immigration status.

Nonetheless, some workers may fear that providing information to LCO will result in retaliation based on their immigration status or lead to disclosure of their or their family member’s immigration status. To address this fear and ensure appropriate enforcement of labor laws, LCO has developed a process for workers to request LCO submit a Statement of Interest during an active LCO investigation or enforcement action to the U.S. Department of Homeland Security (DHS) in support of a worker’s request to DHS for immigration-related prosecutorial discretion.

1. What is immigration-related “prosecutorial discretion”?

Because DHS cannot respond to all immigration violations within its jurisdiction, it exercises prosecutorial discretion to determine if or when to pursue removal (deportation) of immigrants.  DHS may exercise prosecutorial discretion at any step in the immigration process, such as deciding whom to detain or release or deciding whether to settle or dismiss a case.  One type of prosecutorial discretion is called “deferred action.”  Although deferred action does not confer lawful status, a noncitizen granted deferred action is considered lawfully present in the United States for certain limited purposes and may be eligible for work authorization. 

An immigration attorney can help you decide if prosecutorial discretion or other forms of immigration relief may help you.  (See #11 below.)

2. Does LCO support requests for immigration-related prosecutorial discretion for workers involved in LCO cases?

Yes. LCO may submit a Statement of Interest in certain active investigations or enforcement actions to allow LCO to fully investigate worksite violations while protecting workers. LCO will consider requests on a case-by-case basis for a Statement of Interest where any part of LCO is conducting an active investigation or is enforcing the law through administrative citation hearings or in court against your employer. Cases will be considered where there is a threat of immigration related retaliation or other immigration enforcement action that deters workers from cooperating with investigation or enforcement. Typically, LCO will submit a Statement of Interest for an entire worksite and not name individual workers.

3. How do I ask LCO for a Statement of Interest in support of my request that DHS grant deferred action?

If you believe LCO has an active investigation or enforcement action against your employer, you can send the request to LCOstatementrequests@dir.ca.gov with the subject line “Request for Submission of Statement of Interest.” An active investigation or enforcement action refers to a dispute or allegation of a violation of law that the LCO is investigating or enforcing through administrative citation hearings or in court against your employer. Cases that have been closed will not qualify.

A request may be made by a worker, advocate, or representative. Requests may also be made on behalf of a group of workers.

Requests should include the following information:

• Name and address of the employer;
• Worksite addresses;
• LCO case number and the LCO unit investigating or doing the enforcement, if known;
• A brief description of the case and the impact of the violations on workers;
• A description of any retaliation or threats (or fear of such) workers at the worksite may have witnessed or experienced related to labor disputes or violations and/or immigration status;
• A point of contact who can respond to follow-up questions from LCO.

NOTE: Disclosure of individual worker names is not necessary to establish that LCO has an active investigation or enforcement action.  When emailing a request, requesters should not disclose:

• Individual workers’ immigration histories or needs;
• Sensitive or personally identifiable information, including dates of birth, Social Security Numbers, or Alien Registration Numbers.
 
4. After I submit my request to LCO for a Statement of Interest, what will LCO do?

LCO will decide on a case-by-case basis whether to submit a Statement of Interest to support a request for prosecutorial discretion to DHS and may contact the requester for more information. The LCO never communicates with your employer about your request. If LCO decides to support the request, LCO will send DHS the Statement of Interest and provide the requester with a copy of the Statement.

5. What happens if LCO declines to submit a Statement of Interest?

If LCO decides not to submit a Statement of Interest to DHS, LCO will inform the requester or their representative in a timely manner.  Statements of Interest are wholly discretionary and decided on a case-by-case basis. If LCO decides not to provide a Statement of Interest, LCO will not communicate with DHS about the request. A decision not to submit a Statement of Interest will not affect LCO’s labor investigation or enforcement action

6. Does submission of a Statement of Interest by LCO convey any immigration status or protection to a worker?

No.  A submission by LCO of a Statement of Interest to DHS does not confer immigration status, nor any specific immigration protection, to individual workers.  Instead, an individual worker must request deferred action from DHS and include LCO’s submission of a Statement of Interest as part of that request.

7. Does the submission of a Statement of Interest guarantee that DHS will use immigration-related prosecutorial discretion in a particular case?

No.  DHS exercises sole discretion in deciding whether to exercise immigration-related prosecutorial discretion.  The submission of a statement of interest from LCO does not guarantee that DHS will grant prosecutorial discretion in any individual case.  

8. Will LCO seek prosecutorial discretion for me?

No. LCO’s role is limited to supporting requests for prosecutorial discretion by submitting a Statement of Interest explaining why the exercise of discretion in a particular case will aid LCO’s active investigation or enforcement action.  Individual workers, or their advocates or representatives, must independently request that DHS exercise its prosecutorial discretion.  For more information on how to request prosecutorial discretion from DHS, visit:  https://www.dhs.gov/enforcement-labor-and-employment-laws. Below (question #11) is information about how you can find pro bono legal service providers.

9. Will the LCO keep the information contained in a request confidential?

In keeping with LCO’s standard practices, to the maximum extent permitted by law, LCO will keep requests for a Statement of Interest confidential.  LCO will share Statements of Interest with DHS, but such Statements typically will not contain any personally identifiable information of any individual, such as names, birth dates, etc., without their prior permission and notification.

10. Can LCO provide a Statement of Interest to DHS without receiving a request?

Yes. Where appropriate, LCO can submit a Statement of Interest regarding a worksite’s labor dispute to further its investigation or enforcement action on its own without receiving a request.

11. Where can I get more information?

Questions about the process outlined above may be directed to LCOstatementrequests@dir.ca.gov before a request is submitted.

Consistent with LCO’s enforcement role, LCO cannot provide legal advice on the benefits and risks of seeking immigration-related prosecutorial discretion.  Individuals should seek immigration law advice before deciding whether to request a Statement of Interest or whether to submit a request for the use of prosecutorial discretion to DHS.

For a list of pro bono legal service providers funded by the State of California:  https://www.cdss.ca.gov/benefits-services/more-services/immigration-services/immigration-services-contractors [English].

April 2023