INS Arresting Nannies Who Seek Legal Status

After years of living in the shadows as an illegal immigrant, Estela grabbed at the chance to become a legal U.S. resident under a federal law that allows certain workers to obtain immigration visas if they can prove they are not taking jobs from Americans.

She had been working as a nanny for a San Gabriel Valley family and, with their sponsorship, submitted an application to the U.S. Department of Labor, complete with her real name, address and illegal status.

Little did she know that even as the Department of Labor was approving her application, it was sending the information to investigators from the Immigration and Naturalization Service, who proceeded to track her down, put her in deportation proceedings and fine her employer $1,100.

“I tried to do everything in a legal way,” said Estela, who did not want her full name used because of concerns that her pending immigration case could be affected. “In California, there are millions who are illegal, there are criminals. Why me?”

For the last four months, special agents from the INS have gone into neighborhoods from Pacific Palisades to the eastern reaches of Los Angeles County in search of nannies and housekeepers who are illegally working in the United States.

The agents are using information that the nannies have provided in good faith to the Department of Labor. The use of the information by INS agents is legal, but nonetheless has angered immigrant-rights groups, employers of domestic help and the nannies themselves.

Since 1986, when Congress adopted the use of penalties against employers who hire undocumented workers, INS agents have used these so-called “labor-certification” applications to find illegal immigrants.

Agents say the information has helped uncover smuggling rings, fraudulent attorneys and sweatshops where workers are kept in virtual slavery.

But critics of the INS say the agency has pursued a policy that has swept up not only blatant abusers of the law, but also employees who are making an effort to become legal residents of the United States.

“Here we have the nannies, who provide a tremendous service to our community, being placed in a Catch-22 situation,” said Amin David, an Anaheim businessman and president of Los Amigos of Orange County, a Latino business organization. “The INS should never be expected to enforce (immigration) laws and at the same time legalize citizens. It destroys all kinds of credibility.”

“It’s just bringing them up to make them a sitting target,” said Stuart Collins, a Los Angeles Presbyterian minister whose housekeeper was arrested in February. “I believe in fair play, and I don’t think the INS is playing fair.”

In some cases, illegal immigrants have been arrested by one section of the INS even as another was approving their applications to become legal residents.

“It’s really a warped policy,” said Peter Schey, director of the National Center for Immigration Rights. “What it says is, ‘If you try to legalize, we’re going to bust you.’ ”

Immigration officials say they are only enforcing the law.

“They shouldn’t look at the INS as doing something wrong,” said INS Los Angeles District Director Robert M. Moschorak. “They’ve violated federal law. The principal issue is that they don’t have the right to work in the United States.”

John Brechtel, who is in charge of INS investigations in Los Angeles, said that as a matter of fairness, the agency must enforce the law in all workplaces. “We want everyone to know that employer sanctions are for everyone, and that includes nannies and baby-sitters,” he said.

“The majority of cases before were in the garment industry; now it has expanded into other areas, and one of those areas is nannies,” Brechtel said.

In the Labor Department’s Western region, which covers California, Nevada, Arizona and Hawaii, 2,072 nannies and housekeepers applied for labor certification last year--and more than 90% were approved. The vast majority of the applications came from Southern California.

Lou Belmonte, a labor certification specialist for the Department of Labor, said her office is sending 100 to 150 applications to the INS for investigation every two or three months.

Brechtel said agents cited 15 nannies and housekeepers between November and February. Immigrant-rights groups say that regardless of the number, the arrests have made applying for legal status a risky and frightening endeavor for both domestics and employers.

Theoretically, the application is submitted by an employer who is seeking permission to fill a job opening with a non-U.S. resident. But in reality, many applicants are illegal immigrants who are already working for the employer.

Labor certification does not allow applicants to work; it merely attests that they are needed and there are no qualified U.S. workers to fill the job.

An applicant can legally work only after obtaining an immigrant visa from the INS. That approval is usually granted for workers with labor certification, but because of a backlog, it can take three to five years for a visa to be issued to an unskilled worker.

Many employers and immigration attorneys complain that arresting nannies is a backward policy that penalizes those who are trying to work within the system.

“They’re not on welfare and they’re not out there doing drugs,” said one Los Angeles mother whose nanny fled rather than face deportation. “I think the whole system is wrong. Here you’ve got a worker who wants to work and we need her. Now they got a gal on the run. Is that good? Is that how the system is supposed to run?”

Even some INS staffers have privately complained about arresting nannies, saying it wastes investigative resources. One INS source said the real motivation behind the push is to improve the agency’s enforcement statistics.

“It’s so easy,” said the source, who asked not to be identified. “They keep doing it because they’re getting their numbers up.”

Many employers of nannies and housekeepers say they never imagined they were breaking the law and, in fact, thought they were doing just the opposite.

“We honestly thought by filing her papers we were doing the legal thing,” said the Los Angeles mother. “By not filing, we thought we were doing the illegal thing.”

The woman said she was happy to apply for her nanny, who had worked for the family for 18 months. “We were crazy about her, and we would have done anything to help her,” the woman said. “To be honest, I never asked if she was legal or illegal. I didn’t even care.”

The nanny filled out the application and sent it to the Department of Labor. The family placed an advertisement in The Times, looking for a legal U.S. resident willing to take the job. “No one applied,” she said. “Not one.”

The woman, who did not want her name used because of concerns that it could affect her nanny’s case, said two INS agents arrived at her door one January morning. They showed their badges and said they wanted to ask a few questions.

“I didn’t even know enough to be scared,” she said. “But my (nanny) was afraid. She didn’t know what had gone wrong.”

The woman refused to open her door, but the agents returned a week later and told the nanny to report to the INS district office in Los Angeles.

After her interview with the INS, a letter arrived saying she could no longer work and was facing deportation.

“I’m sorry, but I’ve got to go,” the nanny told the family.

A few days later, the woman walked her nanny to a bus stop. “She cried,” the woman said. “I haven’t heard from her since.”

The woman was stunned when an official from the Department of Labor called, saying that everything was “moving along fine” in the nanny’s application for labor certification.

A letter from the INS came just days later, informing her that she was being fined $1,300 for hiring an illegal alien.

“One person is saying one thing and another is saying something else,” she said. “I am just so mad. It’s the most unbelievable Catch-22 I could imagine.”

The crux of the conflict is the 1986 Immigration Reform and Control Act, a sweeping overhaul of immigration law that sought to stem illegal immigration by fining employers who knowingly hire undocumented workers.

Congress specifically called for an across-the-board enforcement of the law, approving the so-called “Beverly Hills amendment,” which made it illegal to hire even one undocumented worker.

Anne Kamsvaag, an attorney with the Coalition for Humane Immigrant Rights of Los Angeles, said that while Congress banned the hiring of illegal immigrants, it did not prevent undocumented workers from becoming legal residents through the labor-certification process.

The result, she said, is an uncertain policy in which illegal immigrants are both encouraged to work and penalized for it.

The use of labor-certification information to enforce employer sanctions also has made those who are attempting to pursue a legal course the most vulnerable to punishment, Kamsvaag said.

“It’s crazy, but it’s true,” she said.

Dave Simcox, director of the Center for Immigration Studies, a conservative Washington think tank, said that although he sympathized with the plight of the workers, he stressed that the INS can make no exceptions.

“Should immigration policy be based on the needs of people who need servants?” Simcox asked. “It’s not a life-or-death thing. There are lots of people who raise their children themselves. It’s a matter of convenience.”

The INS’ Moschorak also defended the practice, saying that as long as employers continue to hire illegal immigrants, regardless of whether they are nannies or sweatshop seamstresses, the flow across the borders will only increase.

“We’re committed to a very aggressive posture,” he said. “If (the immigration act) is going to work, we’ve got to take away the carrot.”

They have succeeded to a degree.

Estela’s employer said she will never hire another undocumented worker.

She said she was angered and frightened when three agents came to her house in December looking for Estela. She said her child broke out in tears when she saw her nanny afraid of the agents.

The family was fined $1,100 in January for hiring Estela, who has been given temporary permission to work although her case is still pending.

“It’s deterred me,” the employer said angrily. “In my case, they won.”