BECOMING Legal: A Guide to the New Immigration Law : Commonly Asked Questions

The immigration law has spawned many questions, some straightforward , others complex and technical. In an interview last week in his office, Times Staff Writer Marita Hernandez posed some of the most frequently asked questions to William King, INS regional director for immigration reform. Here is an edited transcript of their conversation.

Q: Pretend that I’m an alien. If I have no proof of my early years in this country, is there anything I can do to make up for it?

A: The law says you have to have resided here unlawfully since Jan. 1, 1982. If they’re saying they have no proof during those early years, I find that hard to believe because there are paper trails that can be established by one means or another and they’re limited only to the imagination of the person involved. If they were here during those early years and they were employed in hidden industry, if you will, they still lived someplace. They had an address. They had a landlord. They had friends. They had employers. They went to churches. They saw doctors. Maybe there were children born. There were school records.

For children who were attending school, there is a whole variety of means of proving residence during that period. I can’t emphasize strongly enough that we’re not looking for ways to deny these applications. We will be looking for ways to approve them.

There are a variety of means which will tend to prove residency, such as affidavits from neighbors, friends, former employers, members of the clergy. Dental. Medical records. Driver’s licenses. The range is unlimited.

Q: Would my eligibility be affected if I have used a fraudulent Social Security card?

A: No. We don’t care whose name or who they claimed to be in the past. All they have to do is prove their physical presence here. Their continuous residence during that period, by whatever name.

Q: How can I get proof of employment from a former employer who kept no records and paid me under the table?

A: Again, that would have to be by affidavit. There’s no other means. One thing I should stress here is the confidentiality aspect of that application process too. Nobody need fear that anything contained in that application will be given to another agency or will be made available even to our own investigators or enforcement people for their purposes.

Q: Would the employer be open or leave himself open to liability for taxes if he provided a letter to the employee?

A: Not at all. He will not be liable because the information contained in that application is not available to anyone.

Q: Is there anything I can do if a former employer refuses to give me proof?

A: No. We have no means of forcing an employer to provide the necessary information.

Q: Let’s say I’ve never filed for income tax. Will this affect my eligibility? Or will I be liable for back taxes?

A: Not for temporary residence. No. The information that’s submitted in the application for temporary residence, as we’ve said, is totally confidential and it will not affect the application for temporary residence.

It will, however, affect the permanent residence. . . . At the time a person makes application for permanent residence, they will then have to prove that they have paid their taxes for the past three years. So at that time, it may come into play, but not at the time of application for temporary residence. One thing to remember is that you have an 18-month period (when) they’ll be in temporary residency status, so they’ll need to be paying taxes during that period. So what we’re talking about is another year and a half that they may end up having to pay back taxes on.

Q: Let’s say I’m a single working mother of U.S.-born children, receiving supplementary income through AFDC--will this disqualify me?

A: We don’t feel that will be disqualifying, but we would have to look at it later on because it may relate back to “public charge” possibilities on the part of the parent. If it’s shown, for example, that the applicant is not able to support himself and family, then the public charge aspect of the bill could be invoked. In other words, the intent of Congress is that all people who are going to gain this legalization status will be self-supporting.

The other thing, though, that I should add: We’re not so inclined to look backwards in this. . . . Keep in mind: prospective rather than retrospective, all the way along the line. We’ll be looking at their potential rather than their past. And if they are employed now and they show even a short history of employment, the ability to take care of themselves, then that will overcome any receipt of welfare in their past.

Q: What if I was convicted of a felony in my home country, but it was a political offense resulting from political persecution against me?

A: That’s a very difficult question. We’re looking at criminal felonies. If it fits a felony, then I would say the person would be barred from the temporary residence or the permanent residence privilege. The political aspect that you added is something that might be argued later. . . .

Q: Would I be disqualified if I’ve been deported from the country or have left under voluntary departure?

A: Not necessarily under a voluntary departure, but definitely under an order of deportation (after Jan. 1, 1982.)

Q: If I’ve already applied for permanent residence status under the old immigration law, should I now apply for amnesty under the new law?

A: That’s up to them. If this (amnesty) fits and it would be quicker for them, then by all means we would encourage it. If they’ve been here in an unlawful status and they meet all the requirements, fine. Registry is another out, if they’ve been here since Jan. 1 of 1972. . . . So it really is a difficult call. There’s pros and cons for both. For instance, if they’re married to a permanent resident, I believe the backlog on second preference is backed up to 1977, that’s quite a wait. . . . But if you’re a single guy with no other concerns who could go both ways, then it would be another call because amnesty would be the simpler way to go and it would eliminate maybe a long wait. The disadvantage is that you have that temporary residency period. . . .

Q: Should I seek the help of an attorney, an immigration consultant or a notary public in applying for legalization?

A: We have, as you know, approved a lengthy list of organizations that qualify as designated entities.

But there are instances, certainly, where an attorney’s assistance would be to the benefit of the person applying, and our only concern about this is that these people who will be applying are not ripped off by the unscrupulous few out there, regardless of their profession, whether they’re attorneys, consultants, notary publics, whatever.

It’s a relatively inexpensive process as long as the people avail themselves of the services that are readily accessible. We realize we have an image problem and it’s difficult for somebody who’s lived here trying to stay out of sight for the last six or seven years to say, “I can walk in tomorrow and nobody’s going to do anything to me.” But our principal concern is that they not be exploited in this process.

Q: If my employer is unconvinced by the self-certification process, can I get a work permit from INS, or what can I do?

A: No. And there’s no need for that. No need whatsoever. There has been an extension as you know to Sept. 1. Any person who claims to be legalization-eligible who tells the prospective employer that he will apply for such legalization prior to Sept. 1 is eligible (to work) and the employer is free from the fear of any penalties being imposed by us. But we’re not in a position to issue any work permits prior to the time they make their application.

Q: The question that comes up from aliens is: “My employer doesn’t believe me. He’s not up to the latest information” on self-certification.

We’re doing everything we can: We’re holding employer informational conferences all over the place. We’re doing all we can to convince the employer that he doesn’t have a problem now. We’re not going to go immediately into a heavy enforcement mode and we’re trying to make that known. We want to educate rather than enforce.

Q: Where can I go to file a discrimination complaint if I’m refused employment or fired, although I may be eligible for amnesty?

A: The law provides for the establishment of an office of special counsel in the Department of Justice and within the office is the responsibility for investigating and prosecuting any allegations of discrimination. That’s out of our jurisdiction.

However, in this region we do have what we call a fair employment practices officer and his position is designed to serve as a buffer, if you will, between the employer and the employee. Wherever somebody feels that they might have been fired because of a discriminatory practice or fear of the employer that he is going to get in trouble, we’ve encouraged these people from either side to contact this fair employment officer so that he can conciliate between the two parties.

We’ve had all kinds of allegations made about mass firings based on discriminatory practices, and in only one instance have we found where a firing did occur, and it ended up being really not directly related to the new law. There was a case up in Modesto where an employer had allegedly laid off several people. And (our officer) went up there and talked to both sides. It resulted in an amicable resolution and created a much better climate in that area because it provided more understanding for the employers of the law.

Q: What happens if I qualify for amnesty but my husband or my children do not?

A: That’s a tough question, but Congress failed to address it when they wrote the law. We’re not in a position to expand on the law in our regulations. And there may be cases where compelling humanitarian reasons would cause a person--a young child for example--not to be separated. But every single case has to stand on its own merit and while we’re very sensitive to their problem, there’s not going to be much we can do about it. It’s something that will probably require legislative remedy.

Let me put it this way. If a qualifying member makes his application realizing that the other members of his family will not qualify, we’re not going to be out there searching or hunting down young kids or the unqualifying family members. We’re going to be targeting industry.

We’re taking the heat on this, but it’s not something that was addressed in the law.

Q: So what would you advise people to do?

A: I can only tell them that if they are legalization-eligible certainly to make that application. Those non-qualifying members are subject to arrest and removal, but the chances of actual removal would be slight. So what you have in effect would be a continuing illegal resident who would be facing the same risks that he is today.

Q: If I’m not sure that I’ll qualify, should I apply anyway or do I risk being deported?

A: No, by all means, anyone who feels that he has the slightest chance of qualifying should make that application. I want to make it very clear that if a person who is found for one reason or another, after making the application during the interview in a legalization office, to be statutorily ineligible, then that person will be free to leave.

This is not a sting. We set this up so that we’ve got 36 offices separate and apart from any existing INS facilities (in the western region). There will be no enforcement presence at any of these offices, and if that person is found ineligible, if we ever see him again it will be by pure chance. It will be if they’re an employee illegally somewhere; we might find them in a factory survey or a farm and ranch check. But he’s free to leave (the INS application processing center).

Q: I have a question that I’m sure will be raised in people’s minds: Why does the amnesty application require me to list the names and locations of all my relatives, and will this place them in any jeopardy?

A: That question gets asked a lot. The answer: purely statistics and demographics. Our central office is doing a demographic study to try to determine where the pockets of what nationalities are. And by no means subjects any of the other family members to any unnecessary fears about deportation. We will not use that information.

I think an important thing to point out in the confidentiality issue is that any one of us who would use that information is subject to criminal penalties. We could go to jail for using that information for any other reason, and I don’t think you’ll find an immigration officer in the world willing to take that chance. It just isn’t worth our careers, our lives.

I think I’m better qualified than some of these people who claim to be protecting the illegals to say that there is a need for a legalization program. Because I’ve seen the way they’ve been exploited over the years and I’ve seen it in a more intense fashion than probably anybody who is in a position now of trying to protect them. I’ve seen the murder, the rape, the robbery. I’ve seen the suffocations in the back of trunks of cars. I’ve seen people left in trucks in the middle of the desert in 110 degree heat. Locked in to suffocate. I’ve seen families separated. I’ve seen smugglers kick little kids loose very often down there on the border in the middle of the night simply because a kid might be making too much noise.

Q: One more question. What assurance can you give applicants fearful of INS--and you know they are fearful--that the law will be applied generously and not result in the mass deportations feared by some people in the community?

A: There will be no mass deportations, and as far assurances are concerned I think our regional commissioner has expressed them very well in stating that, not only in this region but across the country, when an applicant comes in, we’ll be looking for ways to approve their applications rather than deny them. I’ve already told you that there will never be an enforcement presence in any of these offices, except in a rare instance where we might detect a fraudulent application.

Once fraud is detected, then the record would be open for the purpose of the prosecution. . . . I don’t think the family would be at risk. If that record is open for the purpose of prosecution, I can’t imagine a situation where it would be used for any purpose other than prosecution. To go behind it, to go into the application (in order) to round up illegal family members, I can’t envision that happening.

You asked what assurances we can give people (that the law will be applied generously), I think one assurance to those people who can afford it, is to wait and see what we do. Our example is a good assurance. When they see the first month or two of people getting processed and getting their temporary residency, I think people will be more comfortable. Not everyone has that option. There are a whole group of people that have to file within the first 30 days and frankly they have to file or we will remove them from the country if they don’t file. They have no choice but to do that.