Unpacking the debate over migrant work permits

The Explainer

As incoming migrants to the United States fill shelters and streets coast to coast, immigrant advocates and liberal politicians are calling for expanded access to work permits. Conservative critics say such moves could further enable already record levels of migration at the southern border.  

Meanwhile, to support themselves and their families, some migrants are finding informal work, exposing themselves to underground-economy risks like wage theft. Many are in immigration court proceedings, which may take years in a system backlogged by 3 million cases. 

The procedural and practical barriers to work permits depend on each person’s case.

Why are so many migrants left without work permits? 

Like most immigration matters, it depends.

Whether noncitizens are eligible for a work permit in the U.S. can depend on their immigration status. How long ago they applied for asylum can factor in, too. And sometimes, for special immigration programs, their nationality and date of arrival matter. 

Migrants who have a path for work authorization include those who are eligible for temporary protected status or were paroled into the country. (Both are a type of temporary, time-limited permission to remain legally in the U.S.) In recent years, the Biden administration has expanded parole opportunities for some individuals from Cuba, Haiti, Nicaragua, Ukraine, and Venezuela.

The president’s use of immigration parole – an authority created in the 1950s – has become increasingly controversial. It’s the subject of federal litigation by several Republican-led states and a thorn in congressional budget debates.

Another route to work permits is applying for asylum based on fear of persecution back home. After submitting an asylum application, a migrant must wait at least 180 days to obtain a work permit. That delay comes from a law passed on Capitol Hill 28 years ago. 

What’s the role of Congress?

Congress makes immigration law. In 1996, it codified into law a six-month mandatory wait after an asylum claim is filed before individuals could obtain a work permit. The view from 2024, however, is that the wait didn’t curb demand to come. 

Now, several state and city officials are calling on the federal government for help as they manage increased numbers of migrants relying on local government services. That includes Denver Mayor Mike Johnston, whose city has tracked the arrival of around 38,000 migrants since late 2022.

“All that is required is a clear act of courage from the Congress to take action on the things that cities need to be successful,” Mayor Johnston told reporters on Thursday in Washington. Along with work authorization, he said, cities like his need more federal aid and coordination of incoming arrivals.

In early 2023, House Democrats and Senate Republicans introduced bills to narrow the wait period for asylum-seekers’ work permits to 30 days. Beyond pleas to Congress, local officials have also appealed to President Joe Biden for support. His administration took limited action in September by offering temporary protected status for Venezuelans who entered the country by July 31, 2023. 

The government has also sped up work-permit processing, particularly for certain parole-based cases, and continues public awareness efforts to reach eligible migrants who have yet to apply, says U.S. Citizenship and Immigration Services in an email. Yet beyond the timeline of approval, the cost of some work-permit applications and navigating filing and fee waivers are other practical barriers – ones that clinics nationwide have tried to ease.

Why is the issue of migrant work permits controversial?

How observers value access to work authorization can reflect their stance on who should be allowed to enter. Advocates often focus on the right to seek asylum under U.S. law, while conservatives argue that current operations let in too many people unlikely to merit protection.

Allowing more migrants to work could help with labor shortages, says Jennie Murray, president and CEO of the National Immigration Forum. “Not allowing someone to work is basically, by default, forcing them to be dependent on charity,” she says.

Critics, on the other hand, say that easier access to work permits could encourage the arrival of more economic migrants who may be ineligible for protections like asylum. That relief is granted at the government’s discretion.

“If you are telling economic migrants, ‘Come to the border, say “I want asylum,” and we’ll hand you a work permit’ ... that’s only going to create more incentives for people to abuse the system,” says Ira Mehlman, media director at the Federation for American Immigration Reform. 

Immigration experts say that beyond the “pull” factors of migration, there are “push” factors, including other countries’ political and economic crises beyond U.S. control.

Are there consequences for working without a federal work permit?

Again, it depends.

“It’s really complex,” says Amy Grenier, policy and practice counsel at the American Immigration Lawyers Association. “Working without authorization can have implications on someone’s immigration process,” she says. However, “it depends a lot on the case.” 

With unauthorized work, the liability is more so on the employer, says Jennifer Lee, associate professor of law at Temple University in Philadelphia. Under federal immigration law, it’s illegal for employers to knowingly hire noncitizens without work permits. The worker can face consequences if they provide false documents. 

The absence of work authorization “makes it incredibly hard for folks to find work,” says Professor Lee, “because most employers don’t want to violate federal law and hire somebody without work authorization.” Workplaces that do assume the legal risk of hiring these individuals could exploit them.

Labor law adds another layer of complexity. Experts say that if a migrant does work without a permit, workers’ rights laws at the state and federal levels – like protections against wage theft – still apply to them. The Department of Homeland Security has signaled it may consider immigration protections for unauthorized migrants, on a case-by-case basis, for those who choose to speak up.