Immigration Article of the Day: Legalizing Undocumented Work by Jennifer J. Lee

Legalizing Undocumented Work by Jennifer J. Lee, 42 Cardozo L. Rev. (forthcoming 2021)

Abstract

Eight million undocumented workers live as a separate subclass of exploited workers in the United States. The federal prohibition on undocumented work creates the plight of the undocumented worker. Social movements for undocumented workers respond by focusing on unscrupulous employers or the economic benefits provided by essential workers. These approaches, however, can fail to contest the moral disapproval to undocumented immigrants that justifies outlawing their work based on the rule of law or fairness to native-born workers.

This Article proposes legalizing undocumented work separate and apart from immigration status. It responds to the moral disapproval by reframing the plight of undocumented workers as the subordination of a racial subclass of workers, which violates fundamental principles of equality and freedom. For workers who participate in and contribute to the law and economy of the American workplace, a separate caste of workers violates equality. Their inability to lawfully work also restricts their freedom to sell their own labor and work without coercion. Notably, these constraints on equality and freedom are being imposed on a primarily brown-collar workforce. At the same time, the United States has acquiesced to undocumented work, by turning a blind eye and actively profiting from such work through taxes, profits, and goods and services. A closer look at “illegality” reveals that its extension to the realm of work to justify exclusion of undocumented workers is problematic. Given the various growing social movements focused on anti-racial subordination, it is an opportune time to make such claims.

The legalization of undocumented work applies more broadly to all workers in contrast to the proposals for legalizing immigration status that are inevitably limited to “deserving” subgroups of workers. Yet legalizing undocumented work means that immigrants will continue to face deportation because they lack lawful immigration status. There are practical steps, such as anti-retaliation protections and prohibitions on worksite enforcement, which can further help disentangle work from migration. While the legalization of undocumented work is not a panacea for the challenges faced by low-wage workers, having lawful work status increases the ability of workers to access the wider job market, move freely between jobs, and exercise workplace rights. Such legalization too provides a first step for reexamining the restoration of social, economic, and political rights of immigrants that have otherwise been foreclosed because of “illegality.”

KJ