Baird Case Illustrates Green Card Confusion : Immigrants: Clinton showed misunderstanding of the rules governing non-citizens. But policies of U.S. agencies are not always in sync with the letter of the law on illegal workers.

When President Clinton voiced his understanding that starting the green card process for illegal workers meant their status “had been corrected in terms of legality,” he aired a common belief.

He was also dead wrong.

This is not to say the law is perfectly clear on the issue. The President, his secretary of state and all his advisers who endorsed Zoe Baird’s nomination for attorney general got it wrong. And there’s plenty of official encouragement for their point of view.

Under the law, illegal immigrants are just that--illegal. They’re not supposed to work. They’re not supposed to be here.

But until recently, they could get a green card permitting them to work here if they could get a sponsor--an employer who couldn’t get a U.S. citizen for a particular job. In practice, the workers were already on the job, particularly if it was child care: If a family liked a housekeeper, they sponsored her, and she worked for them, illegally, while waiting for the green card.

Law notwithstanding, it had been the policy of several federal agencies to accept this practice. The Department of Labor, which “certifies” the employer for a foreign worker (after advertisements fail to draw a U.S. citizen), could see the foreigner was already here, but let it pass. The INS could see the same thing when it got the application, but let it pass.

The IRS went further, urging illegal workers to pay taxes and promising not to turn them in. The U.S. consulate that ultimately grants the work permit even required proof that the applicant paid taxes while here.

“It took about three years to get a green card,” said Los Angeles immigration lawyer Carl Shusterman, “and we did a lot of them--for judges, politicians, congressmen.” Then the law changed, and a hard situation became much harder.

In 1986, the Immigration Reform and Control Act sought to stem the tide of illegal immigrants by instituting employer sanctions. Employers now had to verify each worker’s status, and anyone who knowingly hired an illegal was subject to a fine or even jail. Going for a green card was suddenly riskier, and it is testament to the nature of the relationship that domestic employers continued sponsoring their domestics.

If there was greater risk, the Immigration Act of 1990 also diminished the chance of reward. Until then, about 54,000 green cards were granted annually, about half to domestic workers. Now Congress has increased to 140,000 the number of green cards available but limited unskilled workers--the category including domestics--to 10,000. As a result, it could take 10 years for housekeepers and nannies to get green cards.

In some places, policy changed along with the law. In the Los Angeles area, for example, the INS investigates all green card applications more closely, Shusterman said, and now they will “go out and take your housekeeper and fine you.” This is obviously not the case in Connecticut, where Zoe Baird’s application precipitated no problem.

Only the IRS has been steadfast, and unequivocal: It even began issuing special invitations to the illegal worker. Under IRS rules, anyone regularly working in a home and salaried--even just one day a week--is an employee, not an independent contractor, and taxes are due: Social Security, unemployment, personal income tax. The IRS doesn’t care if the employee’s work and their very presence is illegal.

So the IRS now provides special taxpayer numbers for illegals, who can’t get Social Security numbers. And it promises not to report them to the INS.

This is somewhat disingenuous. The IRS doesn’t share information with the INS, but it does share with Social Security, which shares with the INS. It’s also proof, as if more were needed, of the federal government’s priorities: Baird’s fine for offending immigration law was less than $3,000; the cost of not paying required taxes was almost $16,000.

The Zoe Baird affair may spur some proposals for change in a situation that has been a constant problem for much of the population, if obviously brand-new to the President and his advisers.

There should at least be an increase in the number of green cards allotted the “unskilled” workers who care for children, the elderly and the disabled, said Washington immigration lawyer Priscilla Labovitz. People who are already necessary could also become legal, and in shorter time--which would go a long way to ending an underground arrangement rife with potential for exploitation.

The American Immigration Lawyers Assn. further proposes to bring the arrangement above ground at the outset. As soon as the Labor Department certifies a household for a foreign worker, says Executive Director Warren Leiden, the worker should be given “a non-permanent, conditional status, allowed to work in the home for at least three years. They’d then be eligible to go into the skilled worker category.”

That might get them legal status in a shorter time. It might also get them a new standing as vital and skilled employees.