Lawful Work While Undocumented: Business Entity Solutions

Abstract

Immigration law and business-associations law rarely enter the same conversation. This Article argues, however, that business entity formation—such as the use of limited liability companies—has the potential to not only expand opportunities for undocumented migrants but also to significantly benefit the U.S. economy. As such, this Article seeks to make a round of introductions: introducing immigration scholars and lawyers to concepts of business entity formation that can radically change the lives of undocumented persons in the United States and introducing corporate scholars and lawyers to the ways in which their work can intersect with immigration law to effect social and economic change.

An estimated eight million undocumented migrants work in the United States despite the fact that, since 1986, federal law has penalized employers for hiring workers who lack work authorization. Some migrants engage in work not covered by the law—itinerant domestic help and, in certain cases, independent contract work. Others work for employers who are undeterred by the civil and criminal penalties for hiring undocumented workers. In each of these scenarios, undocumented workers frequently encounter low wages and hazardous work conditions.

This Article considers alternative work options for undocumented migrants beyond itinerant domestic labor, independent contracting, and working for employers who are acting contrary to law. It examines how forming business entities, such as a limited liability company, can broaden opportunities for undocumented workers— from unskilled laborers to highly skilled professionals. Business entities can have traditional benefits, such as limited liability. But business entities can also offer lesser-known benefits to undocumented owners, including providing a means of working around barriers created by unauthorized-employment laws, and enabling the creation of “mixed-status businesses” where unauthorized and authorized workers can lawfully work side by side. This Article concludes that the skillful use of business entities by undocumented persons has the potential to greatly benefit those individuals as well as the U.S. economy as a whole.

Keywords: immigration, business, LLC, corporation, company, undocumented, migrant, unauthorized, illegal, work, employment

JEL Classification: K1, K2, K37, K20, K22, K42,