Can Illegal Aliens Work without Penalty?

February 27, 2023

IRLI shows immigration court that working illegally is a continuing offense

WASHINGTON—Today, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief with the Office of the Chief Administrative Hearing Officer (OCAHO) at the Executive Office for Immigration Review, in a case that will decide whether illegal aliens who work in this country using fraudulent documents violate the law not just one time, when they are hired based on these documents, but continuously during the whole course of their employment.

The statute governing this question penalizes illegal aliens for using a fraudulent document to “obtain a benefit under this chapter.” As IRLI shows in its brief, a “benefit under this chapter” is not only getting a job, but working in that job for some period of time and getting paid; there is no benefit to getting a job but never working in it. And the same statutory scheme imposes a duty on employers to terminate aliens who they discover are not eligible to work in this country. Thus, the fraudulent document the employer has on file is continuously used by the alien to keep his job, and obtain the benefit of working in this country for pay.

“This case matters because illegal work by illegal aliens is not a victimless offense,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Not only do aliens commit identity theft to obtain employment, but they take jobs from Americans, and also swamp the labor market so that wages for millions of our fellow citizens are lower than they would otherwise be. That is why Congress made it an offense to work illegally, and we hope OCAHO does not hobble this protection for American workers with a specious interpretation urged by illegal aliens and their attorneys.” 

The case is Amicus Invitation No. 23-15-02 (OCAHO).