While an undocumented alien generally cannot recover front pay in employment litigation, anyone, documented or not, is generally entitled to recover wages due for actual labor performed, even if they laborer lacked the requisite papers for lawful employment. Employers who discover that they owe wages to undocumented aliens often do not know how to process the payroll without a valid social security number. There is, however, a way to do it. The employee needs to obtain an individual taxpayer identification numbers (ITIN).
Since May 29, 1996, the IRS has assigned ITINs to aliens who are otherwise ineligible for SSNs but who need taxpayer identification numbers for tax purposes. 61 Fed. Reg. 26,788. A valid ITIN is a nine-digit number, like a social security number or any taxpayer identification number, and always begins with a 9. An ITIN is a tax processing number for both resident and nonresident aliens, as well as their spouses and dependents. It can be used only for income tax purposes. It does not entitle them to social security benefits or the earned income tax credit. It does not create any inferences regarding their immigration status. It bestows upon them no right to work in the U.S. Aliens must apply for an ITIN on IRS Form W-7 (Application for IRS Individual Taxpayer Identification Number). IRS Tax Topic 857.
The application must show a federal tax purpose for seeking the ITIN. In most cases, this will require attaching a federal tax return to the most current revision of the Form W–7 available. Along with the completed Form W-7, they will submit identity documents, and either a federal tax return, or other documentation to show the federal tax purpose for which they need the ITIN.
The identity documents are needed to verify both identity and foreign status; one must include a recent photograph. If one submits an original valid passport (or a notarized or certified copy of a valid passport) there is no need to submit any other documents. If one does not submit a passport document, one must provide a combination of documents (at least two or more) that are current and that (1) verify identity (that is, contains a name and a photograph), and (2) support your claim of foreign status.
If the ITIN is for a dependent, the documentation must prove that the dependent lives in the United States, Mexico, Canada, Japan, The Republic of Korea, and India. If the dependent is a minor, the documentation must establish the relationship between the dependent and the representative signing the application on the dependent's behalf. Such documentation could include a birth certificate, adoption papers, or other court-appointed papers showing legal guardianship.
In addition to a passport, examples of acceptable documentation include: national identification card (showing photo, name, current address, date of birth and expiration date); civil birth certificate; foreign driver's license; or visa. A complete list of acceptable documentation can be found in the instructions to the Form W-7. The documents must be originals or certified copies.
Aliens can apply for an ITIN by mail or in person at most IRS offices in the United States. If they apply in person, the documents will be reviewed and returned to them. Publication 1915, Understanding Your IRS Individual Taxpayer Identification Number, has a list of IRS offices abroad which can accept Form W–7. If applying by mail, use the address shown in the Form W–7 instructions and in Publication 1915. If the original documents have not been returned within 60 days, call 1–800–829–1040 (in the United States), or 1–215–516–2000 (outside the United States), to find out about the status. It takes approximately 4 to 6 weeks for the IRS to notify the application in writing of his or her ITIN. For more information, refer to Publication 1915. You may also want to obtain Publication 519, U.S. Tax Guide for Aliens. For information about who qualifies to be claimed as a dependent, refer to Topic 354.