Becoming Legal : A guide to the new immigration law in the workplace : Commonly Asked Questions

Employers and employees have raised a host of questions about the nation’s complicated new immigration law. Times staff writer Stephen Braun posed some of the most common questions to William King, INS Western regional director for immigration reform, and Robert M. Moschorak, associate regional commissioner for operations.

Question: Let’s start with the beginning. What must employers do to comply with the provisions of the law?

Moschorak: The new law, which addresses all new hires after Nov. 6, 1986, makes it a requirement that all employers ascertain whether or not the individuals that they are hiring have a legal right to be in the United States--either they’re U.S. citizens or aliens who have a legal right to be here. That means the employers are required to do a check of that right to work in the United States and fill out appropriate documentation, such as the I-9 form for verification purposes, and they’re required to keep that form on file and that form is subject to review by INS or the Department of Labor at a future date.

Q: Should employers only ask for the immigration status of those who they assume are immigrants or are they responsible for every one who works in their businesses?

King: Not at all. This I-9 verification requirement is an across-the-board thing. It does not relate to aliens, legal or illegal. What it means is that every applicant for a job in the United States from this point forward--Nov. 6--must be able to prove that he’s lawfully authorized to work in this country, citizen or non-citizen.

Q: Is there any difference between how employer sanctions affect small employers, such as people who hire maids, and big companies that hire dozens of immigrant employees?

King: No, except in the case of an employer hiring a domestic on a sporadic basis--infrequent, nothing by schedule. Then they would be exempt from the I-9 provision, but anything scheduled or more than a sporadic hiring of an individual for work as a domestic would require the same I-9 verifications.

Q: But isn’t it a lot harder to target small employers, such as a housewife who hires a maid, as opposed to a large factory?

King: Obviously, with the millions of employers in the United States, INS is very hopeful that through this intensive educational process that we’re going through that each, each individual who can be classified as an employer understands his responsibility and makes sure that everybody has a desire to voluntarily comply with the law. I think voluntary compliance is the big key to success of the sanctions program.

Q: Is it going to be a lot harder for the INS to enforce the law as it pertains to employees who are paid under the table, such as some gardeners and restaurant workers or those who work for individual employers, such as domestics and handymen?

Moschorak: I don’t think it’s really going to make any difference. No. 1: INS, in the enforcement compliance area, will be looking at the I-9 forms and what type of documentation was presented to the employer and whether or not the employer did an adequate job of screening to ascertain whether or not the individual employee had a legal right to work in the United States. Whether or not the individual is getting paid under the table I don’t really think is going to be an issue at all. In other words, if an employer is hiring illegals and paying them under the table and INS finds those people in the employer’s employ, the first thing we’re going to do is go to the employer and demand to see the I-9s and the verification process that the employer was required by law to go through.

Q: How does the self-certification program work?

King: The big date is Jan. 1, 1982, where individuals who have been in the United States since that date in illegal status, have the ability to apply for legalization now. Sept. 1 is the date by which all those individuals who have a right to apply for legalization must complete a self-certification form--no requirement is incumbent upon them that they present documentation to an employer. If they go to an employer prior to Sept. 1 and indicate that they are eligible for legalization, if they have in fact filed for legalization or will file . . . come Sept. 1, the employer is required to pull back that I-9 out of his records that indicated that this individual who had applied for employment made that claim and to ensure that the individual has work authorization granted by INS as a result of that alleged legalization application that was filed.

Q: What happens to a worker who hands in a self-certification form but is unable to file for an amnesty by Sept. 1?

Moschorak: The extension to Sept. 1 is a dead-end as of Sept. 1. There’s no extension beyond that period of time. So a person who feels he’s legalization-eligible--it’s incumbent upon him to file that application, and get the required employment authorization prior to Sept. 1.

Q: What recourse do workers have if they give their bosses the self-certification form by Sept. 1, but employers tell them that they need more than just that form in order to hire the workers or keep them as employees?

King: There is no requirement beyond that self-attestation by the prospective employee. As far as recourse is concerned, I would suggest that our fair employment practices officer would be a good person to contact because this would usually result from some misunderstanding on the part of the employer and hopefully our fair employment officer could clear up a misunderstanding of that type.

Q: Is there anything that employers can do to prevent the loss of valued workers who fail to qualify for amnesty because they came after 1982 or for other reasons?

Moschorak: If they don’t fit within the parameters set or established by the law, then I would say no. If they’re not legalization-eligible, if they’re not eligible to qualify under the special agricultural worker program, then there is no assistance available at this point.

King: I would like to add that the legalization process, as is the agricultural workers program, is in addition to existing laws and regulations within the Immigration and Nationality Act of 1952. So while one may not qualify for legalization, it’s possible that he may be able to immigrate through the previously existing conditions or situations inherent in the Immigration and Nationality Act.

Q: There have been some reports that employers are not hiring employees who fail to show them the Social Security card, at the same time Social Security offices have been reluctant to give immigrants new numbers until they finished the amnesty process. Without new Social Security cards, what can workers do to satisfy employers who demand those cards?

Moschorak: The quickest way to resolve their problem would be to file an application for legalization. We’re working very closely with the Social Security Administration to the extent that once an application for legalization is filed, we will forward the necessary information to that administration and they in turn will send a letter immediately to the worker with a new account number. The card will not be issued to him at that time until he is granted temporary status. We will then issue the card for Social Security.

Q: There have also been some reports that some employers feel that the self-certification form is just not enough and are demanding that prospective employers guarantee that they will be given legal status down the road. Is this legal and, if not, what can the agency do to insist that employers accept only the self-certification?

King: We can’t speak to the legality of the issue, but we can tell the employer that nothing beyond that self-attestation is necessary. I’m not sure that we’re in a position to insist on anything with the employer in this regard, but we want to assure them that the self-attestation until Sept. 1 is all that’s necessary. They will be in no trouble with us by accepting that self-attestation.

The employer handbook, the M-274, contains two photo reproducible forms I-9. It answers most of the questions that an employer would have and it gives instructions on how to document a person’s eligibility. Now, that handbook is being mailed this month and early in July to every employer in the United States having an IRS employer ID number. That’s something close to 7 million copies that will be mailed. We will also furnish those booklets to employer and trade organizations, AFL-CIO, anyone that we can get them to. So very quickly most of their answers should be responded to through that book.

Q: Your I-9 form, which is in the handbook for employers, lists documents that establish identity and employment eligibility but your amnesty regulations give a more complete list. Which list should employers use?

Moschorak: I think they’re two separate issues altogether. The requirements for documentation on the I-9 form are to prove your right to be legally in the United States and your right to work. The documents for legalization, or what you refer to as amnesty, are to prove an entirely different purpose, that being the length of residence in the United States back to Jan. 1, 1982, in an illegal status.

Q: Why is it that in the list of identity documents the INS accepts a Canadian driver’s license but not a Mexican driver’s license or licenses from other countries?

King: I believe that’s the photo requirement; legal driver’s licenses are met by every province in Canada. That may not be the case in Mexico and other countries.

Q: What happens to an employer who hires an immigrant based on documents that turn out to be fraudulent?

Moschorak: The requirement on the employer is that he make a good-faith effort to ascertain the validity of documents presented to him. We’re not asking anybody to be an immigration cop, so to speak. We’re asking them to review the documentation and make a good-faith effort. If they subsequently turn out to be fraudulent and there’s no indication that the employer had anything to do with the procuring of that document, then the employer has nothing to worry about.

Q: There’s a grandfather provision of the sanctions that says that employers who hire illegal aliens before Nov. 7, 1986, are not subject to employer sanctions. But there are some workers who are seasonal, or who were hired before that date who may have since been laid off for lack of work. Can an employer bring those workers back onto the payroll without risking liability under the sanctions?

King: That would depend on the length of the layoff, the purpose of the layoff or the absence from employment, and those cases would have to addressed on an individual basis.

Q: Let’s say that the INS raids a factory and some workers who came here before Nov. 7, 1986, are arrested. Under the grandfather clause, can an employer bring those workers back onto the payroll without worrying about sanctions? Or will those workers be sent back?

Moschorak: Those individual aliens who were found to be illegally in the United States and who are encountered at a place of employment are subject to arrest and removal from the United States, even though there’s no requirement on the employer that he do anything because they fall under the category of the grandfather clause. There is no safe haven for those individuals as far as INS is concerned. Those people will be subject to arrest and removal from the United States.

Q: How will the continuing discussions in Congress over whether to further postpone the use of employer sanctions affect your timetables for enforcement?

Moschorak: INS is going through a very, very intensive education process right now. I think the guidelines set out by Commissioner (Alan) Nelson will be very effective and I think by the time we get into the (full) enforcement aspect in June, 1988, everybody will be educated as to what the requirements are. I think it will have a very negative effect putting off employer sanctions because it further dilutes any enforcement effort if we keep delaying the ultimate goal of this country, and that’s to rid this nation of people who have no right to be here.

Q: In light of recent comments from Regional Director Harold Ezell that he has a list of 2,000 employers who are most likely to be targeted by the INS in its enforcement of sanctions, who will the agency go after first and who is less likely to be targeted?

Moschorak: That all depends on what happens over this period of the next year. There are many people who have been heretofore notorious for hiring of illegal aliens that understand that now we have a law that makes it illegal to hire illegal aliens. And I think you’re going to see a lot of conformance with the law, so it’s pretty tough to say at this point in time who is going to be targeted. It’s going to depend upon what happens over a period of the next year and, of course, I think it depends upon this willingness to cooperate and ensure compliance.

King: The big thing is we’re in an educational period right now and even those who are notorious in the past, hopefully through this educational process, will come around and comply.

Q: Will the INS return to the wholesale factory and street-corner raids that were familiar law enforcement tactics in the past?

Moschorak: There will always be a need for INS to seek out search warrants once information is developed that somebody is hiring illegal aliens. There will always be a need for search warrant-type operations in places of employment. By the same token, there will always be a need for some type of street operations where we have complaints regarding individual aliens who are suspected of being illegal, who are involved in illegal-type criminal activity and that sort of thing. INS will assist local law enforcement agencies and become involved in those types of operations as we have in the past.

Q: Will you be required to show warrants at all times even when you check factories to view employer’s I-9 forms?

King: No. The requirement is that we notify an employer three days in advance that we wish to inspect his verification forms. That can be done, those forms can be stored or presented to us either where they are stored or at the office nearest our INS facility, their company office.

Q: What happens to employers who are charged with violating the sanctions and what legal appeals or other recourse do they have?

Moschorak: Of course, it starts with the maintenance of the I-9 form itself. There are administrative violations--in other words, if an individual employer fails to complete an I-9 or fails to have it on file for the requisite period of time, it’s considered a violation irrespective of whether or not the employee in question is a U.S. citizen, a legal alien or an illegal alien. Just failure to maintain the I-9 or to have completed the I-9 is, in and of itself, a violation and then that graduates to knowingly hiring illegal aliens, which is a separate violation under sanctions, and that gets into the administrative fine area and is followed by criminal penalties for “pattern and practice” violations of knowingly hiring and continuing to hire illegal aliens.

Q: Beyond that, though, what legal appeals does someone who is charged with these things have?

King: There will be a cadre of judges, as I understand it, that will hear appeals and the employer will have the ability to appeal to at least one higher level.

Q: Are there any situations where naturalized citizens can have hiring preference over immigrants who are still waiting for their citizenship under the amnesty law?

King: Both in government, for example, and in private industry there are certain jobs that require U.S. citizenship, so in those instances I would say yes, there’s a possibility that U.S. citizens may be given priority over aliens simply because the job requires that you should be a U.S. citizen.

Q: If an immigrant worker believes that he is the victim of discrimination, who does he complain to? When should he complain, and what kind of proof should he supply the INS?

King: They should contact the Anti-Discrimination Unit, which is housed within the Civil Rights Division of the Department of Justice. That sounds like a mouthful, but I understand that the Civil Rights Division is in the process of opening offices of special counsel throughout the United States and the people may apply to them whenever they feel they’ve been discriminated against. I don’t have the telephone numbers or their locations as yet because I understand they’re in the process of gearing up. One other suggestion: If there is a problem, they can always come to a fair employment practices officer, hopefully to conciliate a problem before it gets to the stage where a discrimination complaint could be filed.