Staying Legal : A Guide to Phase 2 of the Immigration Amnesty Law : Other Key Aspects of the Immigration Law
Besides those who are applying for permanent residence, many employers, legal residents and some of those who are undocumented are affected by the revised immigration laws. For instance, employers are barred from discrimination based on a worker’s ethnicity. Some people who didn’t apply under Phase 1 of amnesty may still be eligible. And some undocumented people are still eligible for certain public assistance. This is a simple guide to these other important aspects of the immigration law.
Discrimination
Have you been fired, laid off or denied a job because of the way you look or your immigration status? It could be a case of discrimination.
The immigration law makes it illegal to hire undocumented persons and provides for civil and criminal sanctions against employers who knowingly hire people without the proper work permits.
The same law, however, provides for penalties against employers who discriminate against a worker based on his immigration status or physical appearance.
This protection, known as the Frank Amendment, after Rep. Barney Frank (D-Mass.), was incorporated into the law to calm fears of discrimination raised by some Latino congressmen and some civil rights groups.
Specifically, the law explicitly forbids employers, recruiters and employment agencies from discriminating on the job on the basis of national origin or citizenship. This provision applies to employers of more than three persons.
Employers convicted of work discrimination are subject to fines of $1,000 for each individual and up to $2,000 for repeated violations. The employer may be also ordered to hire the affected person and to pay back wages.
Under the law, an employer can hire a citizen instead of a legal resident if both applicants are “equally qualified.”
Those people who have obtained legal residence, political exiles and refugees who believe they have faced discrimination should:
- Inform the government of their intention to become citizens by filing Form I-772 with the INS or by presenting a petition, Form N300, with the Naturalization Court.
- Legal residents who are eligible for citizenship should file an application for citizenship within six months after becoming eligible.
How to File
a Discrimination Complaint
Those who believe themselves to be victims of discrimination on the job because of their national origin or immigration status must file a formal complaint within 180 days of the alleged act of discrimination. The complaint should be filed with:
The Office of the Special Counsel of the Department of Justice
P.O. Box 65490
Washington, D.C. 20034-5490
(800) 255-7688
Complaints against employers of 15 or more workers can also be made with the Equal Opportunities Employment Commission. The local office of the commission is at 3660 Wilshire Blvd., Los Angeles, Calif. 90010.
Advice to Employers
The best protection against discrimination charges is to carry out the requirements of the law: Do not discriminate against workers based on their national origin or citizenship.
The INS advises employers to carry out the law literally and to make sure every individual hired after Nov. 6, 1986, has a legal right to work in this country.
The American Civil Liberties Union offers this advice to employers: “Do not fire nor refuse to hire anybody simply because of a foreign appearance or accent, do not treat certain employees or prospective employees differently because of their ethnic origin, do not impose different or stricter requirements than those required by the immigration act and don’t give less preferential treatment to authorized foreigners than you give to citizens.”
The Grandfather Clause
Employers have no obligation to check the residence documents of those employees hired before Nov. 6, 1986. The INS cannot impose fines against employers or demand that they have documentation for these employees. However, the INS can detain and deport these workers if they are apprehended at work or anywhere else. This protection is commonly known as “the grandfather clause.”
The Undocumented
Millions of undocumented people who did not qualify under the legalization program have been left highly vulnerable to exploitation.
The INS has announced that it will not conduct massive raids but has indicated that it will continue to penalize employers who violate the law by knowingly hiring workers without immigration papers.
If the employer sanctions have the anticipated impact, many jobs will disappear and the undocumented will have greater difficulty in finding jobs; in some cases, some unscrupulous employers may lower wages, reduce benefits or violate safety rules to take advantage of this situation.
Alternatives for
the Undocumented
Some people who did not apply or were turned down for temporary residence may still qualify. Several court cases on a variety of amnesty issues are pending.
The following categories of people may still be eligible to file amnesty applications:
- Those who left the United States after the new law passed on Nov. 6, 1986, without first getting permission from the INS and re-entered the United States either legally or illegally. Case name: Catholic Social Services.
- Those who left the United States sometime after Jan. 1, 1982, for a visit abroad and re-entered legally using a student or tourist visa. Case name: LULAC.
- Those who entered the United States before Jan. 1, 1982, with a student or tourist visa that did not expire until after Jan. 1, 1982, but who violated the visa, for example, by working or changing schools without INS permission, and the violation was known by some federal agency before that date. Case name: Ayuda.
- Those who did not apply for amnesty or whose amnesty applications were denied because they or their U.S. citizen children received welfare or some other public or government benefit. Case name: Zambrano.
If you think you may qualify, call the National Center for Immigrants Rights Inc. at (213) 388-8693 for more information and referrals to attorneys.
For others, there may be alternatives to become legalized. However, because of the intricacies of the process, these people probably need to consult an attorney.
One possible way to legalize one’s status is through a close relative who is a citizen or permanent resident.
Another way of becoming a legal resident is to obtain a work visa through the cooperation of your employer. The offer of employment would have to be for work in high demand in this country and for which the person is uniquely qualified or because U.S. citizens are unwilling to perform the work offered.
Those who have lived here since 1972 may qualify for legalization through the “registry” program.
Another alternative may be political asylum if the undocumented person fears persecution upon returning to his country of origin. These cases are very difficult to win.
The Rights of
the Undocumented
The rights of undocumented persons are limited under law, but they do exist. Such people have access to medical care and are protected from labor exploitation.
For instance, the undocumented cannot receive regular Medi-Cal but can get “Restricted Medi-Cal.” This will pay for emergency care and pregnancy health needs, including prenatal and postpartum care. Restricted Medi-Cal applies to poor people 20 years old and younger, 65 years old and older, the disabled, pregnant and the parents of a child if one parent is absent or unemployed.
In addition, if you have a very low income, you can get free health care at a county hospital or clinic--no matter what your immigration status.
Also, illegal aliens are guaranteed certain workplace rights: You have the right to be paid at least the minimum wage (now $4.25 an hour); you have the right to be paid overtime wages if you work more than eight hours a day or 40 hours a week; you have the right to complain about unsafe or unhealthy conditions without fear of retaliation; and you have the right to be free of harassment or discrimination because of race, national origin, sex or religion.
