Since the launch of Documented’s WhatsApp channel two years ago, thousands of Spanish-speaking undocumented workers have subscribed to receive our Spanish newsletter, Documented Semanal, and shared their questions and concerns about immigration issues in New York. One question we’re often asked is: “How can an undocumented person work in the United States?” As with most immigration questions, the answer is not simple.
Federal law requires an immigrant to have an Employment Authorization Document (EAD), or work permit, to lawfully work in the states. However, undocumented immigrants do not have that document due to their immigration status. Some other classes of immigrants legally allowed to be in the U.S. are also not permitted to work, such as tourist visa holders.
When hiring, employers are also required to verify the eligibility of the prospective worker by using the form I-9, which determines if an employee is permitted to work in the country by examining an EAD or Green Card. This process makes it unlikely that an unauthorized worker will get hired.
However, to sustain themselves, undocumented workers have started to work in the cash economy, also known as “under the table” or “off the books.”
We spoke with experts on immigration law and labor laws to learn about the avenues for obtaining a work permit in the U.S., as well as undocumented workers’ rights.
The information in this article is solely for informational purposes only and does not constitute legal advice. For legal assistance please see our list of pro-bono lawyers in New York.
Can undocumented immigrants find work in the U.S?
Undocumented immigrants are not permitted to work without an EAD, but they can still find employment through irregular ways. Undocumented immigrants make up 4.4% of the workforce in the United States, primarily in industries like construction, restaurant, and retail. In New York, that figure translates to a workforce of 474,500 undocumented workers.
Many of those workers are employed in the cash economy, which is “not necessarily unlawful as long as the employee declares his or her income to the IRS and pays applicable taxes on that income,” says labor attorney Viviana Morales, partner at Pechman Law Group PLLC.
If you’re paid in cash, do you need to pay taxes?
Yes. Those who get paid in cash also need to pay taxes like other workers. However, if one does not have a Social Security Number, they must apply for an Individual Tax Identification Number (ITIN), which they will use to file their taxes with the IRS.
Our guide explains it: ITIN Number: Another Way To Pay Taxes As An Immigrant
Can I work with just a Tax ID Number (ITIN)?
No, an ITIN does not authorize an employee to work in the United States. It is an alternative to a Social Security Number specifically used to pay taxes. You will need an EAD to work lawfully in the country.
Are undocumented immigrants eligible for an EAD?
An EAD, or work permit, shows that an immigrant is allowed to work in the United States. It is given to specific classes of immigrants — like DACA recipients and asylees, for example — for a certain period of time, and has to be renewed. To obtain an EAD, an individual can file form I-765, Application for Employment Authorization.
Unfortunately, undocumented immigrants cannot apply for a work permit.
People who can apply for an EAD are “immigrants with a pending status application, whether it be lawful permanent resident status or even temporary resident status,” Shawn Rahman, a managing attorney at CUNY Citizenship Now!, said.
What about Asylum Seekers?
Asylum seekers are not considered undocumented immigrants under federal law. But before applying for asylum, they face similar barriers to undocumented immigrants when entering the workforce.
Asylum seekers fall under one of the categories that allow them to work in the United States, but they have to wait for 150 days after starting their asylum case to file the form I-765, and can only receive the EAD after their application has been pending for 180 days.
“The [I-765] is the core application that needs to be filed. To do that, they also have to include if they’re going to do it based on a pending asylum application, and have to include that they have properly filed an asylum application,” said Harold Solis, the deputy legal director of immigrant group Make the Road New York.
Does that mean asylum seekers can work after 150 days?
After 150 days, or 6 months, an asylee can submit the application for employment authorization, and then it can take U.S. Customs and Immigration Services between 2-5 months to process it. Each case is different and may or may not be approved sooner. There could also be processing delays or a backlog with USCIS, which could delay the process.
“It’s a long journey, it’s not six months on the dot. It could take a long time because it is not an individual asylum process,” said Jesus Aguais, president of Aid For Life, one of the organizations helping immigrants connect with resources in NYC.
Note: Asylum seekers who have arrived in the City since January 1, 2022, and can provide paperwork demonstrating that they entered the U.S. Southwest border, can also reach out to the Asylum Seeker Resource Navigation Center for legal assistance. To schedule an appointment call (888) 744-7900.
How much does it cost to apply for an EAD?
The form I-765 Application for Employment Authorization costs $410, and it has to be filed through USCIS. There are different requirements depending on the status of the person who is filing the form (see special instructions). Asylum seekers may be exempt from paying the fee.
What happens if I get caught working under the table?
An employer must use form I-9 to verify that an individual is eligible to work in the United States. The employer can face criminal charges, as much as $3,000 per hire, for employing unauthorized workers.
Rights for undocumented workers under NYS Labor Laws
While undocumented workers are not authorized to work in the U.S., they are still protected from discrimination, retaliation, and wage theft under New York State Labor Law. This means workers are entitled to the minimum wage of $15 per hour in New York City, and $13.20 in other parts of New York, and overtime pay of 1.5 per hour after 40 hours of work per week.
“Although undocumented workers do not have legal work authorization, once they perform work for an employer, they are legally entitled to payment for that work. Their status as undocumented does not impact the applicability of the federal or state labor laws,” said Morales.
Are undocumented workers protected from wage theft?
Yes, undocumented workers are protected from wage theft and can file lawsuits and complaints against employers that commit these types of violations. The Wage Theft Prevention Act of 2011 (WTPA) further outlined protections for New Yorkers and expanded protection from retaliation, while also ensuring clarity of wage statements/pay stubs and payroll records. While wage theft is illegal in New York, it still happens often within immigrant communities.
Sara Feldman, director of worker rights at New Immigrant Community Empowerment (NICE), recommends workers “write down how much they’re being paid every week. Even if it’s cash, just write it down. If it’s a check, make sure you’re taking a picture of the check. If it’s a wire transfer, take a screenshot on your phone. Whatever it is, keep some documentation on that. And if payments are too late, speak up right away.”
Morales also suggested using applications to keep track of hours worked, like the DOL-Timesheet app, which can create a record to help in cases of wage theft.
Workers can submit a wage theft claim directly to the DOL.