If I am undocumented/out of status is it "illegal" for me to work?
December 21, 2015 10:25 AM   Subscribe

For the past two years, an acquaintance has been living in my car. Originally from Japan, he came here on a student visa and then, believing his employers would help him maintain a legal status, he overstayed that visa. Eventually, he lost his job and his home - and sought my help (hating our local homeless shelter, which is admittedly dangerous). Now he believes that if he works he will be breaking the law. This matters to him as he is pursuing legal action against his former employers (a case I don't think has much merit - though I haven't really looked at it). We're meeting with a homeless services provider today, who I'm certain will want him to have some kind of income before helping him find housing. And so the main question is: is it "illegal" for him to work? Thanks for any help.
posted by punkbitch to Law & Government (28 answers total) 4 users marked this as a favorite
where is "here"?
posted by andrewcooke at 10:33 AM on December 21, 2015

It isn't an answer to your question, but have you asked why he can't go home? He's hardly from a refugee nation.
posted by zadcat at 10:35 AM on December 21, 2015 [3 favorites]

My understanding is that there are basically two groups of people that can work in the US. Citizens, and those holding valid and current visas that specifically allow them to work. If your friend is not a citizen (it doesn't sound like it?), and does not have a visa that allows them to work right now, then it does sound like them working would be illegal. Does your friend have legal permission to be in the country right now? It sounds like they have few resources here and are vulnerable to exploitation due to their lack of legal status. Perhaps the best thing you could do for your friend is assist them in getting back to the country they have legal status in and they can persue their legal action against their former employer from there.
posted by saucysault at 10:35 AM on December 21, 2015 [7 favorites]

Um...yes? I don't understand why "illegal" is in scare quotes.

I suppose the one thing that might be a legit question here, is that if he is working illegally, is it his employer who is breaking the law, or him, or both? At least in the USA, it is illegal to employ someone who doesn't have proper work authorization, but I'm not sure if the *employee* is actually breaking the law by working. But in either case, the employment situation itself would be illegal. Perhaps another valid avenue to pursue would be whether he could self-employed without breaking any additional laws, to which the answer might (not sure?) be yes. But certainly traditional employment would not be legal.
posted by phoenixy at 10:38 AM on December 21, 2015 [8 favorites]

Assuming you're in the US, it's not legal for him to work here, but it's also not legal for him to be here. And there may be restrictions that limit social service's ability to help undocumented immigrants.
posted by ArbitraryAndCapricious at 10:47 AM on December 21, 2015 [3 favorites]

If this is the US and he is not a US citizen he does not have the right to work here without a valid work permit, which may still limit what kind of work and/or for what employer he may work. Full stop, there's no gray area, no explicit valid permission to work means no work.

If he has overstayed his visa he is not even in the country legally, and still isn't entitled to work, and will likely be detained and deported if he is discovered.

If he was here on a student visa he was also probably not allowed to work in the first place (and is still subject to deportation). Whatever promises his "employer" made probably weren't even feasible without leaving the country and waiting for a work visa to be issued before returning, thereby nullifying his student visa (it is very, very difficult to hold both work and student permits at the same time).

When he is discovered, he will probably never be able to return to the US. If he is lucky he will be deported within a few weeks; if he is not lucky he could be held in a Homeland Security detention facility indefinitely. It would be to his advantage to have a plane ticket in his hand and be on the way to the airport before his status is discovered.

You may want to check ahead of time with the homeless services provider, before they are given any information about your friend, to find out what they will do with illegal aliens, and in particular ones not from North/Central America.
posted by Lyn Never at 10:48 AM on December 21, 2015 [24 favorites]

It isn't an answer to your question, but have you asked why he can't go home? He's hardly from a refugee nation.

He might be from a background where this will be viewed as shameful or dishonorable, particularly if he has been hiding this situation from his family. People have chosen suicide to avoid the possibility of such condemnation, so tread carefully.

And yes, it is most certainly illegal for him to work or be in the country. This is a difficult situation, best of luck to you both.
posted by Behemoth at 10:51 AM on December 21, 2015 [3 favorites]

The issue about working or not working is a side show, as are whatever ideas he has about pursuing legal action against his former employer. If your friend has overstayed his visa he faces deportation, and if it's been more than a year he might be facing being banned from entering the US for years, or even permanently. He needs competent legal advice about his immigration status.

Your question doesn't mention whether he is trying to get his immigration status changed through the proper channels but I seriously doubt he wants to do anything that could call official attention to himself and get deported.

Depending on your exact situation what you're doing to help him might be considered a federal felony as well. You should seek legal advice for yourself, and you should absolutely request that this question be anonymized.
posted by Wretch729 at 10:52 AM on December 21, 2015 [5 favorites]

If a prospective employer has offered to sponsor him for an H1B visa, then your question should be about the likelihood that application will be successful given that he has been living here illegally for 2 years. Without such an offer, it sounds like it is illegal for him to be in the country, much less to work in it.
posted by deadweightloss at 10:57 AM on December 21, 2015 [1 favorite]

Yeah - just agreeing with what everyone else said. I'm going off the location in your profile and assuming this is in the U.S. And that yes, if he pursues things through official channels like taking legal action against his employers, etc he is almost certainly going to get deported. I would be worried about even meeting with the homeless services as well.

There are several people close to me in the U.S. in various places (including where you are) who are undocumented. They *do* work, but their jobs are not legal. They are under the table, paid in cash situations - house cleaning, day laborers, sometimes in restaurant kitchens or small neighborhood shops, delivery jobs, moving jobs, etc... The other option is to get fake papers and hope your employer won't notice. I'm not saying he *should* do any of these things, I'm just saying this is what people do when they are undocumented in the U.S. and they need to work.
posted by primalux at 10:57 AM on December 21, 2015 [8 favorites]

Without a valid work visa, he can't work legally. He can't be in the country legally either, based on the fact that he overstayed on a student visa. He probably won't be successful in suing his old employer and even a favorable wrongful termination lawsuit won't shield him from the visa status problems as those will trump all. If he's concerned about working illegally harming his chances at having a successful lawsuit against his former employers, that ship has already sailed as he decided to stay in the country illegally. He doesn't have many good choices here besides returning home. His decision to overstay a visa has largely eliminated most of his legitimate paths to stay in the US and even if he's able to find a job that looks the other way with regard to his lack of legal ability to work, he could be caught at any time and deported.
posted by quince at 11:00 AM on December 21, 2015 [3 favorites]

I'm seconding that he is likely to just straightforwardly be deported unless he has a valid visa. I'm in the UK, and one of my UK national friends accidentally overstayed a working/transit visa in the USA when working on cruise ships. She was woken in the middle of the night in her hotel room by a bunch of terrifying, burly guys from immigration, forced to grab her stuff, deported that night, and restrictions put on her returning to the USA.

She'd overstayed by two days.

I'm repeating this story because this isn't some vague, nebulous legal issue but potentially a "scary government people raiding your house in the middle of the night" situation - and as it's your car, it's likely to be your house they raid. As primalux points out, there are plenty of undocumented migrants in the USA - but they do everything to stay off the official radar to stop this happening.
posted by Vortisaur at 11:00 AM on December 21, 2015 [4 favorites]

As a side note it is almost completely impossible to get a new guest worker visa from inside the country. I have many friends, from many countries, who've had to go home and wait out the paperwork for job changes, extensions, fumbled fiancee permits, passport expirations, and minor lawyer mistakes because the fixing of the problem - even if they didn't cause the problem - required being a Gold Star Alien and showing 100% adherence to requirements.

It sort of feels like your friend has maybe been feeding you a fairly significant line of BS about his circumstances, and it could end you up in serious legal trouble yourself. The right to work in this country is a huge deal - you may have noticed the past few elections had quite a bit to say about that - and there's really almost no "waiting for my lawyer to sort this out" or "if we get married they'll let me stay" or "someone else screwed up so I'm not in trouble" in this case. It doesn't matter if he filled out every piece of paperwork perfectly but someone else forgot to file one piece of it, it still means he's not here legally and there will be no special exceptions made. Not even really rich people get much leeway on this, that's how serious a deal it is.
posted by Lyn Never at 11:12 AM on December 21, 2015 [17 favorites]

The other option is to get fake papers and hope your employer won't notice.

While this is certainly not uncommon, it is a crime, and committing fraud and/or identity theft has the potential to make an already bad immigration situation much worse.
posted by zachlipton at 11:36 AM on December 21, 2015 [1 favorite]

Your friend has already done something illegal by overstaying his visa, and almost certainly does not have legal status to work. You know how every time you start a new job, you have to provide documentation that you can legally work in the U.S. (as a citizen, that's probably a social security card)? He won't have that, because he's not here legally.

Obviously many folks without legal status do work in the U.S., in cash jobs where they are paid under the table. But I'm not sure whether you are the person who can or should advise your friend on this.

I would tread carefully with homeless services. Based on your profile, if you are in the city listed there, these services may be friendlier to undocumented populations than other parts of the U.S. But, I'm not sure what their attitude would be toward someone who is not exactly fleeing violence or economic devestation in their home country. I would definitely check things out with them in a hypothetical way before getting your friend involved.
posted by rainbowbrite at 11:38 AM on December 21, 2015 [1 favorite]

He should talk with an immigration attorney to get useful information that he can trust.
posted by amtho at 11:54 AM on December 21, 2015 [3 favorites]

The only good outcome for him (and you!) that is likely is that you help him get someplace where he can legally work. His past makes it likely that the only place that will allow him to do so is Japan, though if he has a desirable degree other countries (especially developing ones) might allow him to work there, though his being out of work and undocumented for two years makes that less likely.

He's not going to be given the ability to legally stay in the US because of his breaking the visa*. Helping a friend out is totally understandable, but it's also enabling him to not make realistic plans for the future. The longer he stays in the US, the harder it will be for him to reestablish himself elsewhere and the more likely it is that he or you will be brought up on criminal charges. I would strongly suggest that you call off the meeting today, as any documentation that you've knowingly harbored him may come back to bite you.

It's also possible that he's suffering mental issues - the treatment available to him in Japan may be much better and more accessible than if he tries to stay in the US.

* You are welcome to check with an immigration lawyer, of course, but I doubt they'll give a different answer. The relatively few undocumented immigrants that are granted amnesty tend to come from war torn countries.
posted by Candleman at 12:03 PM on December 21, 2015

Consider contacting a pro bono immigration law attorney. Assuming you are in San Diego, the Legal Aid Society of San Diego is the first place I would call, as they will be able to provide your friend a clear picture of what his current situation is and what his options are.

While the assessment of the situation you've seen in here so far is generally correct, I think it is more helpful to your situation to have an immigration attorney, as a neutral third party, advise your friend as to his situation rather than having you provide information that you received from askmefi.
posted by Karaage at 12:04 PM on December 21, 2015 [6 favorites]

He arrived on a student visa not a work visa, but found a job instead of going to school --- Friend broke the law.
His employer fired him, we (and you!) don't know why --- perhaps they found out he was not legally allowed to work here?
He chose not to obey the limitations of his student visa, and has overstayed that visa by two years --- again, he knowingly chose to do something illegal.
He has involved you in all this, putting you too at legal risk.

The best thing for BOTH of you is for him to voluntarily chose to go back to Japan: if he is deported he will be, at minimum, barred from re-entering the US for several years --- and that's the GOOD news, since the alternative is being *permanently* barred. And, INS and Homeland Security laws being what they are, YOU are risking a felony charge.

(And by the way, just in case he suggests it: marrying to get him legal status will just dig both of you into deeper holes than you are in already.)
posted by easily confused at 12:17 PM on December 21, 2015 [7 favorites]

Ok just FYI your typical F1 student visa allows for an Optional Practical Training period where you are allowed to work for several months after completing your studies. So there is no need to assume that he broke the law by finding a job in the first place. He is, however, breaking it now.
posted by Behemoth at 12:38 PM on December 21, 2015 [9 favorites]

Why not get deported back to Japan? Surely he has a support system there and can apply for benefits in his country and get back on his feet there.

Staying here in the US is not legal. If pursuing the employer for is what's keeping him here....that's a not a wise or likely successful endeavor.

Do him an immense favor and get him home, so he can pick up his life.
posted by Ruthless Bunny at 12:57 PM on December 21, 2015 [2 favorites]

What visa is he on?

You can work part time on a student visa or full time for a max of two years afterwards if you've applied for that extension.

He should call the international student office at his previous university to ask about his current status.

Overstaying a visa is very serious. He should go back to Japan and get a tourist visa if he wants to do so. However, he may not even be able to do that.
posted by kinoeye at 1:10 PM on December 21, 2015

Not only is he breaking the law by overstaying his visa, you are probably breaking the law too. You're participating in a textbook example of harboring an undocumented immigrant, IANAL, but I'm pretty sure this is the applicable law, with an easier-to-understand breakdown here.
posted by furnace.heart at 1:39 PM on December 21, 2015 [1 favorite]

As a social worker in Chicago and previously LA, immigration status is/was not a barrier to service for homelessness. Honestly, we don't care all that much, and sometimes purposefully just don't ask.

However, the longer he is homeless the more likely he is to end up in the criminal justice system for something goes up which will complicate his status further and give him more barriers to reentry if that is his goal.

He could talk to his consulate, or an immigration attorney for advice. Most likely he is going to need to return to Japan.
posted by AlexiaSky at 1:53 PM on December 21, 2015 [11 favorites]

He can't work and if/when he gets caught having overstayed his visa, not only will he get deported, but he'll be completely banned from the USA for 10 years (IIRC) and still have to meet a higher bar afterwards.

I knew someone who escaped a similar situation. I'm not sure of the details, but my understanding was they they exited the country (just to somewhere nearby) in a specific way so as to not leave a paper trail, thus there was no record of when they had left the USA, but now being outside they had clearly left, so they were able to obtain a new visa and re-enter because there was nothing showing they had overstayed. They had expert advice though - they didn't figure out the details on their own.

So AFAIK the slate can still be wiped clean, but sticking to the current plan and trying to remain underground has a good chance of ruining everything.

Also, living in fear, knowing you can never have a future, surrounded by people who do, knowing you have no way out; that's no way to live. That will scar him, if it hasn't already.
posted by anonymisc at 5:23 PM on December 21, 2015 [3 favorites]

I would strongly consider asking ops to move your post to anonymous. You could be implicated in the illegal nature of this situation. FWIW I also agree your friend should both consult a lawyer and be planning to get back to Japan pretty quickly.
posted by gillianr at 5:51 PM on December 21, 2015 [2 favorites]

We're meeting with a homeless services provider today, who I'm certain will want him to have some kind of income before helping him find housing.

There is no income requirement for homeless shelters...not do shelters check for immigration status as far as I am aware. I work in social services and with immigrants, some of whom do not have legal status, and there are many social services available that do not require a check of immigration status.

It's not legal to work without legal status of some kind, but many people do. Just putting that out there. Judging by the population I interact with, many undocumented immigrants are not really bothered as long as they are not putting themselves in obvious situations where they would be. I'm not recommending that, at all, just saying that if your friend seeks social services he will not be immediately deported.
posted by bearette at 6:56 PM on December 21, 2015 [2 favorites]

We're meeting with a homeless services provider today, who I'm certain will want him to have some kind of income before helping him find housing.

My understanding is that, for homeless individuals, income is not the primary barrier to getting help to get into some kind of housing program. Most homeless shelters are aimed at particular populations, such as helping alcoholics get clean and sober or helping women with minor children get back into housing.

For single men, a big issue is that the wait time to try to get into a shelter can be extremely long, many times longer than for a woman. I participated in homeless services in downtown San Diego for a few months. They wouldn't place me and my adult sons as a family. For that and other reasons, I didn't seriously pursue trying to get off the street via the shelter system. But I did spend some time investigating what my options were and they were limited by the fact that I was not an alcoholic, not a drug addict, my children were not legal minors and I was not fleeing a situation of domestic violence.

Homeless services aren't going to place him in housing other than something that is part of the shelter system. Yes, you need an income to qualify for other (market rate) housing. That isn't the kind of housing they are going to try to arrange for him.

If you are in San Diego, here is the link to my homeless website: San Diego Homeless Survival Guide that details some of the resources in the area.

If he goes to Neil Good, he can make an appointment with a lawyer. Neil Good won't ask for too much info. They will make him an ID card and it will show his name, a photo and it is part of city services. So this might be a concern if he wants to remain undocumented. It does create a record of his presence.

Lawyers come in once or twice a week. He can get an appointment and they can help get him information on where to go to look for help if they cannot personally help him with his situation.

I want to say there is a law school or law library downtown that might have a list of pro bono lawyers as well. That is sort of hand-wavy memory.

If he does not want a record created about him at Neil Good, you could try going to Catholic Charities and asking them if they have a referral list of lawyers that might take the case pro bono for a homeless friend with documentation/immigration issues.
posted by Michele in California at 1:45 PM on December 22, 2015 [2 favorites]

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