Frequently Asked Questions on Cal/OSHA’S Role in Supporting Immigration-Related Prosecutorial Discretion
Cal/OSHA enforces occupational safety and health laws, standards and regulations. Effective investigation of complaints and enforcement of workers’ rights depends on the cooperation of workers. Cal/OSHA enforces health and safety laws regardless of the immigration status of the impacted workers. Cal/OSHA does not enforce immigration laws. Therefore, Cal/OSHA 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 Cal/OSHA will result in retaliation based on their immigration status or lead to the disclosure of their or their family member’s immigration status. To address this fear and ensure appropriate enforcement of health and safety laws and regulations, Cal/OSHA has developed a process for workers to request Cal/OSHA submit a Statement of Interest during an active Cal/OSHA inspection or appeal to the U.S. Department of Homeland Security (DHS) in support of a worker’s request to DHS for immigration-related prosecutorial discretion
What is immigration-related "prosecutorial discretion"?
Because DHS cannot respond to all immigration violations within its jurisdiction, it exercises discretion to determine if or when to pursue the 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.)
Does Cal/OSHA request immigration-related prosecutorial discretion for workers involved in Cal/OSHA cases?
Yes. Cal/OSHA submits Statements of Interest in certain active inspections or appeals to allow Cal/OSHA to fully investigate worksite violations while protecting workers. Cal/OSHA will consider requests on a case-by-case basis for a Statement of Interest where Cal/OSHA is conducting an active inspection or litigating an appeal of a citation by your employer. Typically, Cal/OSHA will submit a Statement of Interest for an entire worksite, and not name individual workers.
How do I ask Cal/OSHA for a statement of interest in support of my request that DHS grant deferred action?
If you believe Cal/OSHA has an active inspection or appeal pending with your employer, you can send a request to DOSHStatementRequests@dir.ca.gov with the subject line "Request for Submission of Statement of Interest." A request may be made by a worker, advocate, or representative and may be made on behalf of a group of workers.
Requests should include the following information:
- Name and address of the employer;
- Worksite addresses;
- Cal/OSHA inspection number, if any;
- 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 Cal/OSHA.
NOTE: Disclosure of individual worker names is not necessary to establish that Cal/OSHA has an active inspection or appeal. 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.
After I submit my request to Cal/OSHA for a Statement of Interest, what will Cal/OSHA do?
Cal/OSHA 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. Cal/OSHA never communicates with your employer about your request. If Cal/OSHA decides to support the request, Cal/OSHA will send DHS a Statement of Interest and provide the requester with a copy of the statement.
What happens if Cal/OSHA declines to submit a Statement of Interest?
If Cal/OSHA decides not to submit a Statement of Interest to DHS, Cal/OSHA 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 Cal/OSHA decides not to provide a Statement of Interest, Cal/OSHA will not communicate with DHS about the request. A decision not to submit a Statement of Interest will not affect Cal/OSHA’s inspection or litigation.
Does submission of a Statement of Interest by Cal/OSHA convey any immigration status or protection to a worker?
No. A submission by Cal/OSHA 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 Cal/OSHA’s submission of a Statement of Interest as part of that request.
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 Cal/OSHA does not guarantee that DHS will grant prosecutorial discretion in any individual case.
Will Cal/OSHA seek prosecutorial discretion for me?
No. Cal/OSHA’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 Cal/OSHA’s active inspection or appeal. 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.
Will Cal/OSHA keep the information contained in a request confidential?
In keeping with Cal/OSHA’s standard practices, to the maximum extent permitted by law, Cal/OSHA will keep requests for a Statement of Interest confidential. Cal/OSHA 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.
Can Cal/OSHA provide a Statement of Interest to DHS without receiving a request?
Yes. Where appropriate, Cal/OSHA can submit a Statement of Interest regarding a worksite’s labor dispute to further its inspection or litigation on its own without receiving a request.
Where can I get more information?
Questions about the process outlined above may be directed to DOSHStatementRequests@dir.ca.gov before a request is submitted.
Consistent with Cal/OSHA’s enforcement role, Cal/OSHA 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