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Brandeis University Law Journal 2023-2024, Volume 11

Immigrant Labor and Civil Rights in the United States

Peyton Gillespie517

Immigration has been the subject of intense political debate in
the United States for decades. It is consistently a high policy
priority for presidential administrations, a subject of endless
stalled action from the U.S. Congress, and an issue that
ultimately fuels mass anti-immigrant rhetoric such as the idea
that immigrants take away domestic jobs. This paper addresses
the intersection of immigration and labor in the U.S. and
refutes such rhetoric as inaccurate and grossly misinformed. In
reality, immigrant laborers, regardless of legal status, are
indispensable contributors to the U.S. economy and endure
arbitrary U.S. immigration laws and policies that enable
repeated violations to their fundamental human rights.

I. Context and Guiding Questions

Immigrant laborers constitute a substantial
demographic in the U.S. labor market. According to a 2022
report by the U.S. Bureau of Labor Statistics, immigrants make
up about 18.1 percent of the U.S. civilian labor force.518 That
same year, over 500,000 various types of work visas were
issued by the U.S. government to immigrants seeking work in
the country.467 The same report indicates that, as of 2022, the
U.S. labor force participation rate of foreign-born adults was
higher than that of native-born adults: 65.9 percent of all
workforce-eligible (16-years and older) foreign-born adults
participate in the workforce, compared to just 61.5 percent of
all workforce-eligible native-born adults.519 Thus, analyzing the

519 United States Department of Labor, Foreign-Born Workers: Labor Force
Characteristics 2022, 1.

518 United States Department of Labor, Foreign-Born Workers: Labor Force
Characteristics 2022, 1.

517 Brandeis University Undergraduate, Class of 2025.

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nexus of immigration and labor is critical to providing a better
understanding of the U.S. economy and its labor market. As
will be discussed subsequently, the interplay of these fields is
marked by inconsistent applications of legal protections for the
fundamental human rights of immigrants.

Accordingly, this article seeks to answer the following
questions:

1. How do immigrant laborers with and without legal
status contribute to and interact differently with the
U.S. economy?

2. What is the process for becoming an immigrant worker
in the U.S.? How are immigrant laborers in the U.S.
without legal status treated differently in the legal
system and by employers as opposed to immigrant
laborers who have legal status?

3. What implications do these differences have on the
fundamental human rights entitled to every person
within the jurisdiction of the U.S.?

To begin answering these questions, we first need a clearer
understanding of the specific ways in which immigrants
interact with the economy and labor market.

II. Interactions with the Economy

Immigrant workers in the U.S. are frequently the
subject of harsh assertions about “stealing jobs” from
native-born workers.520 A quote from a report by the American
Civil Liberties Union (ACLU) encapsulates and addresses this
assertion directly: “Contrary to popular belief, immigrants do
not take away jobs from American workers. Instead, they
create new jobs by forming new businesses, spending their
incomes on American goods and services, paying taxes, and

520American Civil Liberties Union, Immigrants and the Economy, 1-2.

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raising the productivity of U.S. businesses.”521 In the same
report, the ACLU contextualizes the contributions of
immigrants in terms of tax payments: each year, immigrants
(with and without status) pay over $90 billion in taxes and only
receive $5 billion in welfare benefits. Per person and
household, immigrants receive significantly less in welfare
benefits than U.S. Citizens while simultaneously paying their
fair share and contributing substantially to the U.S. economy.522

There is also significant evidence to indicate that one of
the only reasons the Social Security and Medicare programs
continue to obtain the necessary funding to stay afloat is
because of immigrant laborers. A 2018 report from the Social
Security Administration articulated this, noting that:
“increasing average annual total net immigration by 100,000
persons improves the long-range actuarial balance by about
0.08 percent of taxable payroll.”523 This 0.08 percent represents
a substantial sum, especially when multiplied by the hundreds
of thousands of immigrants who are issued work permits every
year, plus undocumented workers. It is important to understand
in the context of these contributions, which will be explained
later in this paper, as it helps to show that immigrants are not
reaping benefits or experiencing treatment that is proportional
to their contributions to the economy.

Finally, the specific jobs that immigrants fill in the
labor market provide additional context for understanding their
treatment in the workplace and the crucial role they play in the
U.S. economy. A 2015 report by the Panel of Experts from the
National Academy of Sciences observed that “...immigrants
appear to be taking low-skilled jobs that natives are either not

523 The Social Security Administration, The 2018 Annual Report of the
Board of Trustees of the Federal Old-Age and Survivors Insurance and
Federal Disability Insurance Trust Funds, 181.

522 Sherman, Immigrants Contribute Greatly to U.S. Economy, Despite
Administration’s “Public Charge” Rule Rationale, 2.

521 American Civil Liberties Union, Immigrants and the Economy, 1-2.

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available or unwilling to take.”524 The vast majority of
immigrant laborers (with and without status) in the U.S. are
employed in low-skill positions and make up a substantial
portion of the workforce in numerous industries. According to
research conducted by the Center on Budget and Policy
Priorities, industries with large percentages of immigrant
workers include farming, fishing, and forestry (36 percent),
grounds and maintenance (36 percent), textile and apparel
manufacturing (29 percent), food manufacturing (27 percent),
hotels (27 percent), and construction (24 percent).525 These
industries, critical to the function of the U.S. economy, would
undoubtedly collapse without the support and contributions of
immigrant laborers.

III. The Process

The legal process for becoming an immigrant laborer in
the U.S. depends largely on the individual’s immigration status,
what their country of origin is, whether they have parents or a
spouse with U.S. citizenship, whether they have obtained a job
prior to arriving, and other factors. These specifics won’t be
covered in this article. However, for the purposes of this article,
it is important to understand that each individual seeking to
obtain status and work in the U.S. is additionally subject to
“grounds of inadmissibility,” or categorizations defined by the
government that disqualify certain individuals from working in
the U.S. entirely. These grounds of inadmissibility are often
arbitrary and unfairly enforced, making the process to become
immigrant laborers incredibly difficult in the first place for too
many people..

525 United States Department of Labor, Foreign-Born Workers: Labor Force
Characteristics 2022, 1.

524 National Academies Press, The Integration of Immigrants into American
Society, 6.

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One such ground of inadmissibility is the “public
charge” rule, which was originally established in the late
nineteenth century and has been continually modified to this
day.472 The rule gives the Department of Homeland Security
(responsible for immigration enforcement) the ability to
“determine that a noncitizen is likely at any time to become a
public charge if the noncitizen is likely at any time to become
primarily dependent on the government for subsistence, as
demonstrated by either the receipt of public cash assistance for
income maintenance or long-term institutionalization at
government expense.”526 Many immigrants who come to the
U.S., especially those fleeing persecution, natural disaster, and
economic downturn, arrive with few resources and require aid.
The nature of the public charge rule thus allows the
government unfair and arbitrary enforcement power to turn
away a large number of immigrants at their discretion. It is
hard to imagine that this practice is fair, given that so many
millions of Americans access welfare benefits from the
government (including food and economic assistance) as a
result of economic downturn, environmental disasters, and
more—in other words, millions of Americans are public
charges themselves. In fact, it is widely believed that Congress
continues to implement the rule in order to actively discourage
migrant workers from coming to the U.S. seeking employment,
a clear violation of fundamental human rights and dignity.

Another example of the arbitrary policies immigrants
encounter in the U.S. pertains to asylum seekers. Individuals
seeking to be granted asylum in the U.S. (which, per the
Immigration and Nationality Act, is granted to individuals
fleeing from persecution based on one or more grounds of race,
religion, nationality, political opinion, or membership in a
particular social group) have one year from their time of entry
into the U.S. to file their asylum application. Asylum

526 Federal Registrar, Public Charge Ground of Inadmissibility, 1.

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applications are lengthy filings, often reaching hundreds or
sometimes thousands of pages of detailed information,
documents, and testimony about the individual’s story. Such
applications take time to file, and in the meantime, individuals
applying for asylum are not legally permitted to work in the
U.S.; in fact, they must wait until six months after their asylum
application is filed to be eligible for an employment
authorization document, according to the Immigration and
Nationality Act. There seems to be no good reason for this rule.
It is one of the many examples in which immigration laws
make the legal process for becoming an immigrant laborer in
the U.S. so needlessly difficult and arbitrary.

The above processes, of course, do not pertain to
immigrants who are in the U.S. without lawful status, yet still
seek to engage in employment opportunities to provide for
themselves and their families. These individuals often work
“under the table,” meaning they work without benefits, proper
pay, and often in dangerous working conditions.527 Many of the
aforementioned low-skill industries in which immigrant
laborers are employed involve more hazardous working
conditions than an average office job environment. The nature
of these positions combined with the already vulnerable legal
state of the undocumented immigrant workers breeds
conditions for unfair treatment and abuse on the part of their
employers.

IV. U.S. Labor Law and Civil Rights

The U.S. Constitution applies to all people within the
jurisdiction of the United States, regardless of legal
immigration status. Crucially, its language consistently

527 Sherman, Immigrants Contribute Greatly to U.S. Economy, Despite
Administration’s “Public Charge” Rule Rationale, 2.

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references “people” or “peoples” as opposed to “citizens.”528
While certain fundamental rights are established in the
Constitution, the right to work is not one of them. However,
despite the lack of a Constitutional “right to work,” laborer
rights are still applicable to all workers, whether they are
citizens, undocumented people, or permanent residents.
According to the ACLU, “Federal labor and employment laws
generally apply to all employees regardless of an individual's
immigration status.”529 A report from the University of Chicago
clearly states that all immigrant laborers, regardless of legal
status, share in the right to minimum wage and overtime pay,
breaks and tips, and protections under health, safety, and
anti-discrimination laws.530 Not only are all immigrants
protected under the Constitution as having certain fundamental
rights, they are also entitled to protections as laborers as a
matter of statute.

Given the context that has thus far been established,
many undocumented workers routinely face exploitation,
dangerous working conditions, wage theft, and physical and
emotional abuse.531 The same report from the University of
Chicago notes that 37 percent of undocumented immigrant
laborers receive less than minimum wage and 76 percent of
immigrant laborers experience wage theft.532 In addition, the
report reveals: “Immigrant workers experience 300 more
workplace fatalities and 61,000 more workplace injuries

532American Civil Liberties Union, How Do Labor Laws Apply to
Immigrants?, 1.

531American Civil Liberties Union, How Do Labor Laws Apply to
Immigrants?, 1.

530 Garcia Quijano,Workplace Discrimination and Undocumented
First-Generation Latinx Immigrants, 4.

529 American Civil Liberties Union, How Do Labor Laws Apply to
Immigrants?, 1.

528 The National Archives, The Constitution of the United States of America.

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annually than native-born workers…”533 This research
empirically supports these claims. The vast majority of
immigrant laborers work in low-skilled industries with more
dangerous working conditions and experience high levels of
exploitation.

Neither U.S. labor nor immigration laws prevent
immigrants from serving as independent contractors, exposing
them to even more possibilities of exploitation; this is
especially true in cases of the many immigrant laborers who
work in private residences.534 For example, the report from the
University of Chicago goes on to confirm that many of the 22
percent of undocumented immigrants working in private
homes, the majority of whom are women, experience
exploitative and inhumane working conditions: “In addition to
unregulated pay, they are often victims of physical and mental
abuse, ranging from rape and verbal abuse to 12-hour work
days with little to no breaks and no overtime pay.”535 Despite
the fact that each person in the U.S. is entitled to fundamental
rights and labor rights, current laws fail to protect immigrant
workers equally, irrespective of their legal status, and, in fact,
enable their ill-treatment.

This ill-treatment raises the question: if immigrant
workers enjoy the same fundamental laborer rights as
native-born people in the U.S., aren’t they entitled to legal
remedies for that mistreatment? Technically, the answer is
“yes”—but there’s a catch. Any undocumented immigrant who
takes a case to court, especially pertaining to work-related

535American Civil Liberties Union, How Do Labor Laws Apply to
Immigrants?, 1.

534American Civil Liberties Union, How Do Labor Laws Apply to
Immigrants?, 1.

533American Civil Liberties Union, How Do Labor Laws Apply to
Immigrants?, 1.

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rights, becomes vulnerable to deportation. According to the
University of Chicago report:

“An undocumented worker bringing a dispute to
court risks punishment if found to have used false
documentation in obtaining work. For example, an
undocumented worker unfairly terminated from a job is
not actually entitled to back pay or reinstatement
because such remedies would directly violate the IRCA.
Anti-retaliation provisions make it unlawful for
employers to use undocumented status to terminate
employment in retaliation of a worker complaint.
However, if employer retaliation does occur,
Immigration and Customs Enforcement (ICE) can still
follow up on a report and attempt to deport the
undocumented worker.”536

Here exists an absurd and apparent legal paradox: immigrant
workers can seek legal redress for workplace discrimination,
yet they're exposed to serious legal repercussions if they dare
to take action to obtain said redress. This treatment of
immigrant workers, enshrined in law, unequivocally makes a
mockery of American legal principles of fairness, consistency,
and rationality.

V. Conclusions and Recommendations:

In what follows, this article proposes some policy
solutions which address the issues pertaining to violations of
fundamental human rights and dignity throughout this article.
To start, there must be a substantive effort by government
leaders to curb rhetoric and ideology that mischaracterizes
immigrants and their contributions to the economy. Especially

536American Civil Liberties Union, How Do Labor Laws Apply to
Immigrants?, 1.

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in the U.S., where major decisions are made by representative
bodies composed of elected officials, shaping public opinion is
a critical component of influencing policy outcomes. The
executive branch plays an immensely important role in the
shaping of public opinion and must be strategic about
employing methods for both 1) acting to influence public
opinion on particular issues and 2) exercising executive power
to achieve policy outcomes. This, in turn, may lay the
groundwork for eliminating arbitrary policies like unreasonable
limits on work permit applications and rules like the “public
charge” rule in the name of fundamental human rights and
dignity.

An excellent example of this proposal in action is the
Obama Administration’s implementation of Deferred Action
for Childhood Arrivals (DACA). According to the Migration
Policy Institute, roughly one-third of the over 11 million
noncitizens currently in the U.S. were brought here as children
(commonly known as “Dreamers”).537 The issuance of DACA
by the executive branch provided work permits and temporary
protection from deportation for these young immigrants. In a
2012 speech to the American public following DACA’s
implementation, President Obama seized the opportunity to
provide a compassionate perspective on the immigration
debate:

“These are young people who study in our schools, they
play in our neighborhoods, they’re friends with our
kids, they pledge allegiance to our flag. They are
Americans in their heart, in their minds, in every single
way but one: on paper. They were brought to this
country by their parents -- sometimes even as infants --
and often have no idea that they’re undocumented until

537 Migration Policy Institute, Profile of the Unauthorized Population - US,
1-2.

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they apply for a job or a driver’s license, or a college
scholarship.”538

Although much of DACA was ultimately struck down by a
federal court in Texas, its implementation provides a key
example of how the executive branch may take action to
address policy issues. Such actions are crucial in the face of an
increasingly polarized Congress and effective in working to
reshape public opinion. Presidential administrations have the
ability to create fairer conditions for immigrants and vouch for
their rights. This is crucial for implementing effective
immigration policy in the face of a deadlocked legislature and
increases in anti-immigrant rhetoric.539

Additionally, the federal government must ensure that
labor laws are being equally enforced across the U.S. with the
intent to protect all workers, regardless of status, in the name of
safety, fairness, and equality. Special attention must be paid to
workers in low-skill industries because, as mentioned
previously, these laborers are the most susceptible to
exploitation and abuse. Moreover, this is especially true for
independent contractors who, for example, work in private
homes and are at even greater risk of experiencing
mistreatment.540 Ensuring that labor law protections are
enforced and apply equally to all people is not just humanly
decent, but it is enshrined in the law and entitled to each and
every person within the jurisdiction of the U.S. Constitution.

Lastly, immigrants must have equal access to fair legal
processes and legal remedies. Arbitrary policies like
unreasonable limits on work permit applications and rules like

540 White House Office of the Press Secretary, Remarks by the President on
Immigration, all.

539 United States Department of Labor, Foreign-Born Workers: Labor Force
Characteristics 2022, 1.

538 White House Office of the Press Secretary, Remarks by the President on
Immigration, all.

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the “public charge” rule must cease. They are violations of
fundamental human rights and dignity. Immigrants should not
feel the need to refrain from seeking legal relief because they
are worried about the threat of deportation. Hence, another
proposal, stemming from the interest of fundamental rights and
dignity, is that all courts in the U.S. should adopt an amnesty
rule that legally protects personal information from agencies
like ICE when individuals bring suits, as is their legal right.
Upholding policies that place a burden on an individual’s right
to seek legal remedies is entirely against American values.
Finally, the same rights of citizens should unquestionably apply
to immigrants in terms of receiving back pay when unfairly
terminated from a job.

The assertion that immigrant workers are “taking our
jobs” is an ignorant mischaracterization that not only
invalidates the vital contributions of immigrants to the U.S.
economy, but also their lived experiences as human beings
seeking a better life. Immigrants are an essential cornerstone of
the livelihoods of all people in the U.S., especially in a country
built by, for, and of immigrants. Upon examination, it is
apparent that U.S. immigration laws and policies not only
make the legal process of obtaining work unnecessarily
difficult, but also don’t adequately protect immigrants. Rather,
these laws actively discourage immigrants from seeking legal
relief, essentially depriving them of their fundamental rights.
The federal government must ensure laws and policies are
consistent with upholding the equal treatment of all people in
the U.S., regardless of status.

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