Options for DREAMer getting paid under the table

One of my readers, Amy, has a very typical situation with regards to filing for DACA work permit after having a history of unauthorized employment.  She writes, "I've used an ITIN to work and to file taxes about five years ago.  In recent years, I have been working, but I get paid under the table.  My employers basically issue me paychecks out of their personal bank account.  Should I write my ITIN in place where they ask for the SSN?  Do you think I will have any problems for using this number in the past to work and file taxes? There is a huge paper trail with the IRS in my name.  Since my employer has been so kind to me in helping me out, in case I receive a request for evidence (RFE) or am required to go to an interview, I don't want to give my employer's name to them or anything that would potentially harm them.  Do you anticipate repercussion to our current/past employers, if I've been working without a permit?"

ITIN does not authorize you to work:  As you already know, it is illegal to work with an ITIN (and that is why the USCIS is asking only for social security numbers rather than ITIN with the premise that even foreigners who have never even visited the United States or have an intention to ever visit may get this number for the sole purpose of meeting their tax obligations to the United States -- basically anyone who owes money to the IRS needs to and can get an ITIN).  So in many ways you are no different than those DREAMers who have worked with a fake social security number, though, in your case, you have also established a paper trail of your breaking the law by filing tax returns.

Legal opinion on filing for immigration benefits after working illegally:  There are currently two legal opinions on whether to file for a work permit under the childhood arrivals deferred action:
  1. Wait for a few months to see what the USCIS does.  Maybe it will provide a clarification or we will hear from those who get approved despite working illegally (and then you can definitely apply), or they will be denied because of this (in that case it is pointless to apply and provide all your sensitive information to the USCIS for no positive return on the risk).  
  2. Confess your crime and take the risk.  I strongly encourage you to speak to an attorney to get an opinion for yourself, because your case is really complex.  Whenever you provide any information to the authorities, it has consequences (you need to think not only of the outcome of deferred action childhood arrivals application but also potentially a green card, and eventually, naturalization).  Any information you provide right now to the USCIS will become part of your alien file (associated with an A#) and will come to haunt you every time you deal with the agency.
Always be prepared for answering questions from USCIS and providing backup evidence:  For each piece of detail you provide, you maybe required to provide more documentation or information if the USCIS orders you to.  I do not anticipate that anyone will go after employers -- there are millions of people working illegally for tens of thousands of employers and there simply aren't enough government resources available to prosecute them, the penalties for employers are few or none, plus, they often pass the blame on the workers for providing false documentation -- but still even though your employer maybe nice to you (most likely you are being paid lower wages) but in a legal situation expect that they will most likely accuse you of lying and submitting false papers, and putting you in even more legal trouble.

As I discussed above, if you show any income in your I-765WS (remember that, you should work with the hypothesis that USCIS can check each and everything, including bank accounts and checks received -- that is the purpose of background check and security clearance), you will be opening a whole new can of worms.  I believe that by declaring that you have income without proper authorization might mean that you are asked to provide a lot of other information at a later time.

Think long term before applying for a work permit:  My personal recommendation will be to think this through yourself about pros and cons of a work permit, meet with an attorney, and even after that, think it through before deciding if this is worth it.  Do not forget that attorneys sometimes want money more than anything else and they make money if you apply, rather than wait.  I want you to also recognize that this deferred action does not confer any legal status on you, your overseas travel plans will be highly restricted, and will create a huge paper trail with whatever information you provide.  It can come to bite you at some point.  Maybe this work permit is perfect only for those young people who are too young to have ever done anything illegal and can postpone their deportation by two years.