Saltar al contenido principal

What should I know about the rights of undocumented workers?

Authored By: GeorgiaLegalAid
Read this in: Spanish / Español

Rights of undocumented workers

Contents


What should I know about this article?

WARNING: This article tells you your employment rights as an undocumented worker. BUT you should consult with an immigration lawyer BEFORE contacting any governmental body or taking other action in your case.

Back to top


Who is an undocumented worker?

An undocumented worker is a person working in the U.S. who:

  • Was born outside of the United States,

  • Is not a U.S. citizen or permanent resident, and 

  • Does not have legal permission to work in the U.S.

 

Sometimes people are undocumented because they:

  • Entered the U.S. illegally, or

  • Overstayed a temporary visa.

 

Undocumented immigrants might be deported at any time. 

Back to top


What rights do undocumented workers have in the workplace?

If you are working in the United States, you have rights. You have basic rights whether you are a citizen, permanent resident, have a visa, or are an undocumented worker. 

 

You have the right to:

  • Be paid fairly. This means:

    • You have the right to be paid for all of your work. If you are paid hourly, this means that every hour must be paid. You may also be entitled to overtime if you work more than 40 hours a week.

    • You have a right to earn at least the minimum wage.

    • You have the right to understand any deductions taken from your paycheck.

 

  • Be free from discrimination. Your employer cannot discriminate against you because of your:

    • Age,

    • Gender or sex,

    • Race,

    • National origin and ethnicity,

    • Color,

    • Religion,

    • Genetic information, or

    • Family history.

 

  • Be free from sexual harassment and sexual exploitation. It is illegal for an employer to sexually harass or exploit you. 

 

  • Have a healthy and safe workplace. 

    • You have the right to work in a safe environment. 

    • You also have the right to report unsafe working conditions. 

 

  • Request help from union, immigrant, and labor rights groups. 

    • You have the right to join with others to ask for better working conditions. 

 

  • Be free from retaliation for exercising your rights. Your employer cannot fire or punish you because you reported a violation of your rights. 

    • To protect yourself, consider contacting an immigration lawyer or organization before you take action.

 

  • Workers’ compensation if you are injured on the job. Your immigration status does not bar you from getting workers’ compensation if you are injured on the job. 

 

Undocumented workers are not eligible for unemployment benefits or other public benefits. 

 

Like all workers, undocumented workers are responsible for paying income taxes. 

Back to top


What are my rights if I am undocumented and stopped by ICE or the police?

If you are stopped by a police officer or ICE agent, keep calm. Keep your hands where the officer can clearly see them. You have rights during these encounters, but there may be times when asserting those rights is unsafe. Your safety is the most important thing.

 

Your rights when stopped by police or ICE include:

  • You have the right to remain silent. You cannot be arrested for not answering questions. Tell the officer you do not want to talk.

    • Do not answer any questions about your immigration status.

    • It is better to stay silent than to lie to the police. Giving false information could lead to criminal charges.

 

  • Unless you are under arrest, you have the right to leave. Ask the police officer if you are free to leave before you walk away.

 

  • You have the right to refuse a search of your things. An officer may pat you down if they suspect you have a weapon, but may only search your belongings with either your consent or a warrant. 

Back to top


What are my rights if I am undocumented and arrested by police or detained by ICE?

You have rights during an arrest. These include:

  • You have the right to ask for identification.

  • You have the right to be told what crime you are being charged with.

  • You have the right to not speak. You do not have to answer any questions or speak to officers. If you wish not to speak, inform the officer that you wish to remain silent and want to talk to a lawyer.

    • You do not have to answer questions about where you were born or your immigration status. 

    • If you are detained by ICE, you have the right to speak to a lawyer. However, ICE does not have to provide you with a lawyer.

  • If you are arrested by police, you have the right to make a phone call. If you are speaking with a lawyer, the police cannot listen to your phone call.

  • If you are arrested by ICE, you have the right to call your consulate.

  • You have the right to a bail hearing within 48 hours (or 72 if you were arrested with a warrant). At this hearing, the judge will either set bail or release you without bail on a “personal recognizance” bond. 

    • If you are arrested for a misdemeanor, the bail amount might be set automatically, so you will not need to have a bail hearing. You should be told of the bond amount when you are booked. 


If you are arrested, do not resist. Resisting arrest can lead to more charges. It may also be unsafe.

Back to top

Contents


What can I do as an undocumented worker if my rights are violated?

As an undocumented worker, you’re in a risky position. You have rights, but there is always the chance your employer will contact immigration authorities or retaliate against you for exercising your rights. There are employers that will take advantage of your undocumented status. If your employer contacts ICE:

  • You may face deportation, or

  • If you used false information or papers to get the job, you could be charged criminally. 

 

That is why it is always wise to contact an immigration lawyer or organization before you take action. They can help you protect yourself and your rights.

Back to top


Are there ways to change my immigration status as an undocumented immigrant?

It is important to consult an immigration lawyer before you attempt to change your immigration status. They can help you understand your options. 

 

There are limited options for a person who is not legally in the country to change their immigration status, including:

  • Marrying a U.S. Citizen or lawful permanent resident. Note that marriage does not automatically qualify you for a green card, especially if you entered the country illegally. 

  • Asylum. Asylum might be granted if you have been persecuted in your home country. You must apply within one year of entry into the country or expiration of your temporary visa.

  • Temporary Protected Status.

    • U Visa. This is a temporary visa for crime victims.

    • T Visa. This is a temporary visa for trafficking victims.

    • VAWA. VAWA provides protection for victims of family violence. 

    • DACA. DACA allows some people brought into the U.S. as children to live and work in the U.S. temporarily.

Back to top

Resources

 

Legal help

Last Review and Update: Dec 10, 2020
Was this information helpful?
Volver arriba