Aliens, Employers Share Confusion on New Amnesty Law

Ana Madrigal blames the new immigration law for costing her the $4-an-hour warehouse job she had at a Torrance importing firm.

Madrigal had been laid off before, but until October had always been called back. This time the call never came. A few days after Congress passed the law, she said, a supervisor explained that she was not taken back because management thought she was here illegally.

Madrigal and another worker who lost her job, Rutila Gomez, say that they showed documents to prove legal residence but that management officials then questioned their authenticity.

A company executive denied that the immigration law had anything to do with the women losing their jobs. But Madrigal, Gomez and several other laid-off Latino employees complained to the state Fair Employment Practices Commission.

Confusion and Worry

“These women have been refused their jobs because of their race,” charged their attorney, Susan Alva, of the Los Angeles Center for Law and Justice, who is preparing their case. “It’s definitely happening because of the new law. The employer has made statements that clearly that’s what’s on his mind.”

The new immigration law, with its penalties for the hiring of illegal aliens, has a lot of people worried and confused.

Business people are concerned about penalties and profitability, record keeping and litigation.

Many illegal aliens, union officials and leaders of immigrants’ rights groups are also uneasy, and have urged employers not to overreact. They fear bias against ethnic workers despite anti-discrimination protections in the law. And they report scattered firings of aliens by apparently confused employers, even though such firings are unnecessary.

Employers cannot be punished for continuing to employ illegal aliens hired before President Reagan signed the bill on Nov. 6, even if those workers will not qualify for legalization under its amnesty provisions. Sanctions apply only in relation to people hired after enactment of the law, and they will not be enforced until June 1.

Views vary widely as to the law’s likely impact. Some experts and employers predict a major effect on industries that rely on illegal immigrants. Others, pointing out that fraudulent documents are easily obtained and that employers need not verify authenticity, question how effective sanctions will be.

Many people do not realize that the law envisions putting more teeth into sanctions through creation, a year or more from now, of a sophisticated system of document verification.

Ray Remy, president of the Los Angeles Area Chamber of Commerce, described most employers as “cautiously apprehensive. I think many of them are awaiting the rules and regulations and guidelines,” he added.

Sidney Vogel, president of Vogel Sportswear and a board member of the Garment Contractors Assn. of Southern California Inc., said that employers in the garment industry, which relies heavily on illegal immigrant workers, remain uncertain how they will be affected.

“It can mean . . . things are better than before, because before we always had the threat of a ‘survey’--a raid--with INS coming in and dragging off some of our employees,” Vogel said. But if only a small percentage of workers win amnesty, he added, “we could be hurt pretty badly.”

Identity Documents

About 80,000 workers, most believed to be illegal immigrants, are employed in the garment industry in Los Angeles County. Officials have estimated that 800,000 residents, out of a total of more than 1 million illegal aliens in the county, may qualify for legalization.

Michael Lotito, a San Francisco-based partner in the national law firm of Jackson, Lewis, Schnitzler & Krupman, which specializes in representing management, described the law as “extraordinary” in how widely it eventually will be felt.

“There are very few laws in the United States affecting the employer-employee relationship that affect every single employer,” Lotito said. “This law affects IBM and the housewife in the same way.”

The law requires employers to examine documents establishing identity and work authorization--which would often be a driver’s license and a Social Security card--for all people hired after Nov. 6. Although employers need not verify authenticity of documents, they are barred from hiring aliens knowing that they are here illegally. There is no need to check the legal status of workers on the job before Nov. 6.

These requirements also apply to any persons or businesses that recruit or refer workers for a fee.

It is currently impossible, however, for businesses to fully comply with the law. This is because employers and all new hires must sign forms under penalty of perjury, and those forms are not available. U.S. Immigration and Naturalization Service officials have said employers probably will receive the forms and instructions sometime around March.

INS has announced that in the meantime, it is sufficient to inform newly hired employees that when the guidelines are received they must provide proof of work eligibility.

Technically, however, the law is in effect. Some attorneys say employers would be wise to begin now to examine documents for all new hires. The law does not require employers to make photocopies, but many attorneys urge them to do so in order to have evidence that the documents “reasonably” appeared genuine.

Employers can be punished for failing to fill out the required forms, once enforcement begins.

Fines for hiring illegal aliens range up to $10,000 for multiple offenses, but during the first 12 months after enforcement of sanctions begins on June 1, employers will receive only a warning citation for a first offense. Those who engage in a “pattern or practice” of employing unauthorized workers may be imprisoned for up to six months.

Employers should not think they can find an easy way out by refusing to hire foreigners. Those who try to avoid trouble by hiring only U.S. citizens will run up against a provision of the new law prohibiting discrimination based on citizenship status. Employers are allowed, however, to favor a U.S. citizen over a non-citizen if the two individuals are “equally qualified.”

The law calls for a special counsel to prosecute cases of discrimination based on citizenship or national origin, and also allows private individuals to file complaints.

“There is absolutely going to be litigation--a lot of litigation--over the appropriate interpretation of this area of the law,” attorney Lotito said.

To qualify for legalization, illegal aliens must show that they have lived in the United States since before Jan. 1, 1982, or have spent at least 90 days doing agricultural work in this country in the 12-month period that ended May 1.

Congress, foreseeing that fraudulent documents might undermine the impact of sanctions, wrote into the law plans to consider creation of a more secure system to verify work authorization.

The U.S. attorney general has one year to prepare a report to Congress on how data already available to the federal government could be used to create a computerized telephone system “to verify instantly the employment eligibility status of job applicants who are aliens.”

The U.S. comptroller general has one year to report on technological alternatives “such as magnetic stripes, holograms and integrated circuit chips” to make counterfeit-resistant Social Security cards.

And federal officials have two years to report on the feasibility of establishing a Social Security number validation system--including an examination of “the privacy concerns that would be raised by the establishment of such a system.”

Under the law, illegal aliens who use false documents to get jobs will have committed a crime punishable by up to two years imprisonment. Some experts believe that the threat of a jail term will deter some people--such as Canadians here illegally--who previously had little to fear from INS.

Another key question affecting sanctions is the level of resources INS can put into enforcement.

Joe Thomas, an INS official in the Los Angeles district office, told a recent meeting of garment executives that the agency may assign up to 1,500 people nationwide to enforce employer sanctions.

“I doubt it’s going to be that high, but we have heard the number 1,500,” Thomas said.

INS officials hope that businesses will voluntarily comply with the law and even help enforce it by turning in rivals that employ undocumented workers.

“Penalties do exist, but these are to deal with that small group of people who will not obey the law unless there is a penalty,” William B. Odencrantz, western regional counsel for the INS, told several hundred business people at a Merchants and Manufacturers Assn. forum.

“These unscrupulous employers are those who seek to gain an unfair competitive advantage over those of you who do wish to follow the law, and as such, we are on your side,” he said. “If indeed there are people out there who are acting improperly and are causing harm to you and your business, we encourage you to put forward that information so we can investigate it.”

A recently concluded University of California, San Diego, study that examined a cross-section of urban businesses employing illegal aliens in Southern California and the San Francisco Bay Area indicated that employer sanctions may not have a deep impact without an effective system to verify work authorization.

“It is commonly believed that most of the firms employing undocumented immigrants in the United States are part of the ‘underground economy’--clandestinely operated sweat-shops that violate the minimum wage and labor standards laws, pay their workers in cash to avoid making employee-related payments to the government, fail to pay their workers for overtime and so forth,” said Wayne A. Cornelius, director of the UCSD Center for U.S.-Mexican Studies, which conducted the study. “The firms in our sample certainly do not fit that stereotype.”

Only about 4% of the workers in the firms studied were paid in cash, virtually all the employers withheld federal and state income taxes and Social Security taxes from paychecks, and the hourly median wage, as reported by the workers themselves, was $5.63, Cornelius said. Most of the employers in the study already ask workers to show documentation of legal residence status, he added.

Immigrants-rights advocates also are concerned that illegal aliens hired before Nov. 6 who entered the country too late to qualify for legalization may face exploitation by employers who know they have nowhere else to go.

Workers in this situation are left in a curious and unpleasant legal limbo. In the whole country there is only one employer--their current one--who can employ them without facing possible sanctions. Such workers, however, are still subject to apprehension in INS raids and subsequent deportation.

Illegal aliens who will qualify for legalization also face complications if they lose their jobs before INS begins taking amnesty applications on May 5. At that time, illegal aliens who can present a prima facie case for legalization will receive temporary work authorization pending a final determination on their application.

INS presently is not issuing such temporary work authorization, however, except in cases where it has apprehended and released someone who appears qualified for legalization. An alien who will qualify for amnesty thus could have trouble getting a new job before May 5, if the new employer demands to see documentation.

Odencrantz, responding to a question on this issue, said that hiring such an individual would technically violate the law. But since there are no sanctions for six months, an employer might reasonably decide to go ahead and hire such a worker, with the understanding that the new employee would apply for legalization as soon as possible.

If the employee failed to apply for legalization but remained on the payroll, the employer could then be subject to sanctions, the INS regional counsel said.

“Basically what we’re going to be looking for is good faith,” Odencrantz added. “If you act in good faith . . . you’ll probably not have a problem.”

Staff writer Marita Hernandez contributed to this article.