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Undocumented Workers

V Under the Immigration and Nationality Act (INA), it is illegal to discriminate against any worker, regardless of immigration or citizenship status. However, this information is only helpful if you know about it. 

It is important for undocumented workers to be informed about the protections they have from discrimination, unfair wages, harassment, and disclosure of citizenship status. In addition to the rights against their employers, union representation, and worker’s compensation benefits. This page provides more detail about the rights and remedies for undocumented workers. 

In the United States, an undocumented worker or undocumented immigrant is a foreign-born person who is not a permanent resident and is not a U.S. citizen. “Undocumented immigrant” may refer to a person whose immigration status is not resolved. Due to the unresolved status, the worker does not have permission to work in the United States. For information on types of immigrant status visit the U.S. Citizenship and Immigration Services website.

These two terms are sometimes used to mean the same thing. An illegal immigrant/alien is foreign-born individual who has entered the U.S. illegally and can be deported. It may also refer to a person who entered the U.S. legally but who has lost their legal status and can be deported. An undocumented immigrant is a foreign-born person who does not possess a valid visa or other immigration documentation, because they entered the U.S. without inspection, stayed longer than their temporary visa permitted, or otherwise violated the terms under which they were admitted.

Though courts and laws use the terms “illegal” and “alien” to describe foreign-born individuals in the U.S., they are criticized as being offensive and misleading. For one, “illegal” is an inaccurate way to describe a person who is undocumented; The person’s status is illegal, but the person themself is not. Further, “alien” has negative connotations, implying that foreign-born persons are different than everyone else and perhaps not even “persons.” Preferable alternatives to these terms include “undocumented” and “foreign-born individuals” or “non-citizens.”

Federal anti-discrimination laws protect all employees in the United States, regardless of their citizenship status. Even undocumented workers share some protections, though employers are prohibited from employing anyone without verifying that they are authorized to work in the U.S.

Regardless of immigration status, any worker whose employer has 15 or more employees is protected by federal employment discrimination laws. This includes protection under the following laws:

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, sex, religion, and national origin.

The Equal Pay Act of 1963 (EPA) prohibits employers from discriminating against employees of the opposite sex performing equal work in one workplace.

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits hiring and other workplace discrimination based on age for individuals ages 40 and older.

Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits employment discrimination against individuals with disabilities based on their disability.

The Immigration and Nationality Act (INA) protects undocumented workers specifically. The INA prohibits:

Citizenship status discrimination in hiring, firing, or recruitment or referral for a fee;

National origin discrimination in hiring, firing, or recruitment or referral for a fee;

Unfair document practices in the employment eligibility verification (Form I-9) and E-Verify processes; and

Retaliation or intimidation.

For more information on discrimination, see our national origin discrimination and immigration status discrimination pages.

Under the Immigration Reform and Control Act of 1986 (IRCA), it is illegal for employers to knowingly employ undocumented workers. When employees are hired, their employer is required to ask for documents. The documents must show their identity and authorization to work in the U.S. Those documents must “reasonably appear to be genuine.”

Employers must terminate, or refuse to hire, an undocumented worker if they find the worker is unauthorized to work; however, the employer cannot use immigration status as an excuse to fire undocumented workers who make discrimination complaints. Undocumented workers are covered by federal discrimination laws. The law prohibits employers from retaliating against workers who assert their legal rights. If an employer retaliates against an employee for exercising their right to file a discrimination complaint, the employer is breaking the law.

See workplacefairness.org for more information on immigration status discrimination. 

Undocumented workers can only recover wages that they earned but which were not paid. They cannot recover forward-looking prospective remedies, such as reinstatement or wages they would have earned if they were not terminated. Depending on state law, workers’ compensation may be available to undocumented immigrants. For more information, see this page on the DOL’s website.

Immigration status is not relevant to the filing or investigation of a discrimination complaint with a federal or state agency. It is only during the compliance (remedy) stage that a worker’s immigration status may become relevant. Immigration status may be relevant if reinstatement and back pay are at issue. This is only because these types of remedies are not available to undocumented workers. A worker who files a complaint with the National Labor Relations Board will not have to disclose their immigration status until the end.

Immigration and Customs Enforcement (ICE) “respects the labor rights of workers, regardless of immigration status.”  ICE agents must take precautions to protect workers engaged in protected activity. Agents are instructed to exercise favorable discretion in a situation where:

they have reason to believe there is a labor dispute;workers are engaged in union organizing; orworkers are involved in a complaint to authorities or a lawsuit about employment discrimination, civil rights, or civil liberties.

Favorable discretion could mean release from detention and deferral or a stay of removal.

However, even with these protections, filing a claim against your employer is risky.  You should only act after speaking with an attorney.  See our Attorney Directory for a listing of employment attorneys.

U and T visas, the Violence Against Women Act, and parole status protect employees from retaliation. If an employer illegally retaliates against an undocumented worker for protected activity with threats to call immigration authorities or threats to “blacklist” employees.

U visas can provide temporary work authorization, family member visas, and a path to becoming a lawful permanent resident. To qualify for a U visa, a person must:

have suffered substantial physical or mental abuse because of having been a victim of a qualifying criminal activity;possess information concerning the qualifying criminal activity;have been helpful, be helpful, or be likely to be helpful in the detection, investigation, or prosecution of the qualifying criminal activity; andshow that the qualifying criminal activity violated a local, state, or federal law, and occurred in the United States.

An undocumented worker may live and work in the U.S. for up to four years on a U visa. They may be eligible to apply for a lawful permanent status after three years. Applicants may also be granted derivative visas for qualifying family members.

Congress created the T visa as a form of immigration relief available to trafficking victims. The T visa is available to an undocumented worker who:

is or has been a victim of a severe form of trafficking;satisfies the physical presence requirement;has complied with any reasonable request for assistance in investigating or prosecuting trafficking (if age 18 or older); andwould suffer extreme hardship involving unusual and severe harm upon removal.

The T visa allows victims of trafficking to reside in, receive services, and work legally in the U.S. for up to four years on a non-immigrant visa.

The Violence Against Women Act (VAWA) provides relief to battered immigrants so that they do not have to rely on U.S. citizen or legal permanent resident relative to sponsor their Adjustment of Status applications.

The U.S. Citizenship and Immigration Services has the discretion to parole an individual into the U.S. temporarily. Parole may be given for humanitarian reasons or for reasons rooted in the public interest on a case-by-case basis. The grant of parole is rare and is reserved for “urgent humanitarian reasons or significant public benefit.” Parole status may allow an undocumented worker entry into the U.S. to take part in civil litigation or a criminal prosecution. Humanitarian parole can be applied for in one of two ways:

by applying through U.S. Citizenship and Immigration Services (USCIS); orby applying through U.S. Customs and Border Protection (CBP) at a U.S. port of entry.

Yes, if your employer has more than 15 employees. The Equal Employment Opportunity Commission (EEOC) investigates charges of job discrimination related to an individual’s national origin. The EEOC also investigates discrimination based on race, color, sex, age, religion, and disability, including charges filed by undocumented workers.

You can also file a claim with the Department of Justice’s Office of Special Counsel for Immigration-related Unfair Employment Practices (OSC). OSC investigates charges of job discrimination related to citizenship, immigration status and, in certain situations, national origin. The OSC also investigates charges of unfair document practices. Employers may not request more or different identifying documents than what is required by law. They also may not reject reasonably genuine-looking documents. Lastly, employers may not demand to see specific documents such as an Alien Registration Card or “green card.”

Yes. All workers, including undocumented workers, are required to report their income to the federal Internal Revenue Service and to the state Franchise Tax Board.  Even if you are paid in cash, you are required to report your income.

If you do not have a Social Security Number to report your taxes, and if you cannot get one because you are undocumented, you can use an Individual Taxpayer Identification Number (ITIN) to properly report your income. The Internal Revenue Service can issue an ITIN to any individual who earns income in the United States but is not eligible to receive a Social Security Number.

No. A person must be legally authorized to work in the U.S. to be eligible for unemployment benefits under federal or state laws.

In many cases when undocumented workers are injured at work, employers try to use Immigration Reform and Control Act (IRCA) to deny undocumented employees workers’ compensation. Employers argue that since the undocumented workers are not authorized to work in the United States, they are not legally employees and therefore cannot collect workers’ compensation. Despite employers’ reliance on IRCA, many states laws make undocumented immigrants eligible for workers’ compensation. State law varies as to whether undocumented workers are entitled to worker compensation.

Yes. If you are an undocumented worker who doesn’t work for the government, the National Labor Relations Act (NLRA) protects your right to organize a union, elect a union, and collectively bargain with employers. It also allows you to engage in “concerted activity” to improve working conditions for all employees even if there is no union yet. Concerted activity occurs when two or more employees act, with their employer’s knowledge, to improve working conditions on behalf of all employees, or if one employee acts on behalf of others.

Undocumented workers face a huge risk when their employers retaliate against them by reporting them to U.S. Immigration and Customs Enforcement (ICE). Even though the employer is acting illegally if it does so, in general ICE can follow up on the employer’s report. If ICE does follow up, it can try to deport you. Worse, if you used false information or papers when you applied for your job, you may be charged criminally, fined, deported, and prevented from ever returning to live and work in the U.S.

If you are undocumented, the choice of whether to go ahead with a complaint against your employer is one you must make only after very careful thought, and after obtaining competent legal advice from an attorney knowledgeable about both employment law and immigration law.

On June 15, 2012, the Secretary of Homeland Security announced that certain people who come to the United States as children and meet several key guidelines may request consideration for Deferred Action for Childhood Arrivals (DACA). DACA recipients were also eligible to apply for work authorization. Individuals whose cases are deferred and who are granted work authorization will be issued an Employment Authorization Document (EAD).

 DACA has two important parts:

Part 1: Under DACA, the Department of Homeland Security (“DHS”) will not deport certain undocumented people and will give them temporary permission to stay in the United States. This temporary permission to stay in the U.S. is called “deferred action.”
Part 2: People who are granted deferred action through DACA will be eligible for an EAD, or “work permit,” that is valid for two years, and they can apply to renew every two years. In other words, they can work “with papers.”

The U.S. is no longer accepting people into this program.

No. A prosecutor may choose to delay – “defer” – a proceeding to remove a person from the U.S., but the grant of deferred action does not grant legal residency status. Neither does it cure previous periods of unlawful presence. Deferred action only ensures that a person’s continued presence in the U.S. will temporarily not accrue as unlawful.

According to immigration law in the U.S., employers are responsible for only hiring authorized workers. While you do have to provide your employer with the required proof that you are eligible to work, you do not need to discuss your DACA application or status with your employer.  If you suspect that your employer might be discriminating against you, or has fired you because of your immigration status, that could be a violation of the Immigration and Nationality Act or Title VII of the Civil Rights Act of 1964.

The post Undocumented Workers appeared first on Workplace Fairness.

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