Employment Authorization, Alienage Discrimination and Executive Authority

Leticia M. Saucedo
Published in
Berkeley Journal of Employment and Labor Law

Undocumented individuals with deferred action find themselves in a kafkaesque position, and neither scholars nor courts have persuasively addressed how their liminal immigration status affects their rights in the workplace. Many begin with the intuitive assumption that immigration and employment law are in a fundamental and unresolvable tension with each other. On one hand, anti-discrimination principles protect noncitizens from alienage discrimination in the workplace. On the other hand, Congress enacted employer sanctions precisely to keep undocumented noncitizens out of the workplace. In the face of this dilemma, the default approach is to conclude without analysis that employers (and states) must be able to deny rights and benefits to undocumented noncitizens. This creates a true dilemma for the employment-authorized undocumented worker, and challenges the federal government’s acknowledged power to authorize employment for noncitizens.