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.

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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.

“Illegal immigrant/alien” is an offensive term to some people because it implies that the person is somehow “illegal.” While the person may be in the U.S. illegally, they are not “illegal,” only their status is. “Undocumented” better describes the situation of an immigrant who doesn’t currently have valid legal status in the U.S.

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Federal anti-discrimination laws protect all employees in the United States, regardless of their citizenship or work eligibility.  Undocumented workers are protected as much as any other worker.

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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. Title VII prohibits employment discrimination based on race, color, sex, religion, and national origin;
• the Equal Pay Act of 1963 (EPA). The 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). The ADEA protects individuals age 40 and older from employment discrimination because of age;
• Title I of the Americans with Disabilities Act of 1990 (ADA). Title I 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.

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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 the find the worker is unauthorized to work. But, 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.

For more information, see question number 11 on our immigration status discrimination page, or read the text of the law.

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Undocumented workers cannot receive prospective remedies such as back pay, front pay, and reinstatement because they are unavailable for work.

Civil remedies under the FLSA and Title VII, are available for workers regardless of their immigration status.  These civil remedies include damages under the anti-retaliation provisions. Undocumented workers can also recover back pay under the FLSA.  Under FLSA, “back pay” is payment of wages the worker earned but was not paid.  Under the NLRA and anti-discrimination laws, back pay is payment of wages that the worker would have earned if not for the unlawful termination or other discrimination.  This type of back pay is not available to undocumented workers.

Most states allow undocumented workers to get workers’ compensation benefits. States may vary on the amount of the benefit offered. For more information, see Department of Labor Wage and Hour Division Fact Sheet #48.

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Immigration status is not relevant to the filing or investigation of a discrimination complaint with a federal or state agency like the EEOC.  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 NLRB 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;
• workers 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. For more information, please see question 14 below.

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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; and
• show 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); and
• would 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); or
• by applying through U.S. Customs and Border Protection (CBP) at a U.S. port of entry.

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Yes, if your employer has more than 15 employees. The 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.”

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All workers, including undocumented workers, are required to report their income to the federal Internal Revenue Service (IRS) 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.

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To be eligible for unemployment insurance, immigrant workers must satisfy the same basic requirements as other workers.  First, they must be unemployed “through no fault of their own.” Second, they must have enough wages earned or hours worked to establish a claim.  Third, they must be able and available to work, and they must be looking for, and not refuse, “suitable” work.

Under federal law, immigrant workers must also be in particular immigration categories to qualify for unemployment insurance. Under the law, the state will look at immigrants’ status at the time the work was performed, (the “base year”) and at the time that the worker applied for benefits, (the “benefit year”).

The basic principle is that an immigrant worker will need to have valid employment authorization both at the time s/he earned the wages and at the time s/he is looking for work.

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In many cases when undocumented workers are injured at work, employers try to use 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.

Most states have determined that undocumented workers are entitled to workers’ compensation benefits. With a few exceptions, the federal government permits the states to administer their own workers’ compensation laws.  At least eleven (11) states are still undecided on the issue of workers’ compensation benefits for undocumented workers. 

In Maryland, for example, courts have held that an undocumented worker who is injured in the course and scope of employment is a “covered employee” for workers’ compensation. Courts held that federal law does not control over state workers’ compensation laws. In Michigan, courts have held that undocumented workers are entitled to medical benefits, but not disability benefits, because of the commission of a crime under the IRCA. A handful of states have denied benefits, but the number is dwindling. Wyoming’s Supreme Court held that Wyoming’s workers’ compensation statute includes only “legally employed” aliens. So, an alien who is not authorized to work in the U.S. is not an “employee” for workers’ compensation purposes.

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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.

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Undocumented workers face a huge risk when their employers retaliate against them by reporting them to 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.

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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 are 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.”

All U.S. employers must complete and retain a Form I-9, Employment Eligibility Veri­fication, for each person hired in the United States. this includes citizens and noncitizens. The Immigration and Nationality Act prohibits employers from discriminating in the Form I-9 process against work-authorized individuals based on their national origin or, under certain circumstances, their citizenship or immigration status.

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The grant of deferred action does not give an applicant legal status. In addition, it does not cure such applicant’s previous periods of unlawful presence. However, an applicant who is granted deferred action will not accrue unlawful presence in the U.S. during the time period when deferred action is in effect.

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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 (INA) or Title VII of the Civil Rights Act of 1964 (Title VII).

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