A Thicket of Rules for Illegal Immigrants
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The withdrawal last week of federal Judge Kimba M. Wood as a candidate for attorney general--after lawyer Zoe Baird declined an appointment for the same office--has focused attention on the issue of hiring illegal immigrants. Here are some commonly asked questions about that issue, and some answers.
* What exactly is an “illegal” immigrant?
It’s someone who came into the country illegally or someone who entered legally but overstayed his or her visa. It could also be someone who violated his legal status, perhaps by coming in on a student visa and then working without a permit to do so.
* Under what circumstances can illegal immigrants work?
Generally, they can’t. “But there might be certain circumstances in which you can work while still illegal,” says Los Angeles immigration attorney Carl Shusterman, “if you’ve applied for political asylum or amnesty, for example.” These people usually have a special employment authorization card from the INS.
* How does a foreign visitor get a work permit?
Some visitors can get temporary working visas--executives, professionals, managers of international companies, people who have made investments here. Those here illegally may apply for a “green card” that permits them to work. Of those, three-fourths have petitions filed by close relatives who are citizens or permanent residents. Another group have petitions filed by employers. And a third are people who have applied for political asylum and have been given that employment authorization while their case is pending.
(There was a temporary program in 1987 and 1988 that offered amnesty--and work permits--to people who had been here illegally since before Jan. 1, 1981.)
* Can one hire illegal immigrants while they are on a waiting list for a green card?
This is a little complicated. The illegal worker is not supposed to be working, but until Nov. 7, 1986, the law did not address the employer’s responsibility. At that point, the Immigration Reform and Control Act instituted employer sanctions--fines, maybe even jail--for anyone who failed to verify a worker’s status and knowingly hired an illegal. Technically, therefore, Wood’s hiring of an illegal baby-sitter in March, 1986, wasn’t illegal.
* How long does it take to get a green card?
For a domestic worker, the wait used to be three or four years. But the Immigration Act of 1990 increased the number of green cards available--from 54,000 a year to 140,000--but limited unskilled workers to 10,000. Domestic workers, who formerly got half of the cards granted, now face waits of more than 10 years for a green card.
* If these workers are illegal, what are all the tax questions that keep coming up?
U.S. income tax is due on all pay, however illegal the work. Anyone who works in a home, on salary, and on a regular basis is an employee, not an independent contractor, and payroll taxes (Social Security, unemployment) are also due.
The IRS doesn’t care about legal status. It even provides special identification numbers for illegal immigrants, who can’t get Social Security numbers. And it urges their use, promising not to turn anyone in to the INS. (The Social Security Administration makes no such promise, and shares its tax records--the same records--with the INS.)
* Have these rules made any difference in the numbers of illegal workers?
Jeffrey Passel at the Urban Institute in Washington says the number of illegal workers, estimated at 3.3 million, will keep growing at a rate of 100,000 to 300,000 a year, and “the evidence suggests that the flow of illegals has not been brought under control through employer sanctions. As long as they can make 10 times as much in the U.S. as in their own country, they’ll keep coming,” says Shusterman. “The practical effect (of the recent laws) is we’ll still have as much illegal household help, but we won’t try to make them legal.”
* Might this situation change?
Given the prevalence of illegal immigrants among those who care for children, the disabled and the elderly, many lawyers urge an increase in the number of green cards for such “unskilled” but obviously valuable workers. The American Immigration Lawyers Assn. in Washington suggests that household workers applying for green cards be given a “non-permanent, conditional status” that allows them to work in the home for at least three years, at the end of which they would be eligible for work permits as skilled workers.
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