by Sunita Sohrabji

Ethnic Media Services

The Biden Administration last week gutted the signature Trump-era policy known as public charge, which effectively imposed a wealth tax on people seeking to gain permanent residency in the US.

The new rule will go into effect on Dec. 23. It has already undergone a 60-day public comment period, and thus needs no further adjudication before it takes effect.

The rule greatly narrows the definition of public charge to just two criteria: Temporary Assistance for Needy Families, and institutionalization for long-term care.

The Trump administration had broadened the definition of the seldom-used 1999 rule to include immigrants receiving Medicaid, public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination, even if they were applying for those benefits on behalf of their US born children.

The rule — which gave immigration officers the discretion to determine if an individual applying for a green card might become dependent on the government — would also have been imposed on people attempting to permanently enter the US.

Lawsuits and injunctions kept Trump’s policy from ever being imposed, except for a brief window in 2020. The US Supreme Court killed Trump’s rule in 2021, shortly after President Joe Biden took office.

But despite non-implementation, the rule had a chilling effect on immigrant communities. Millions of people disenrolled themselves and family members from federal benefits to which they were entitled, for fear of invoking public charge inadmissibility when they applied for permanent residency.

“This action (today) ensures fair and humane treatment of legal immigrants and their U.S. citizen family members,” said Secretary of Homeland Security Alejandro Mayorkas in a Sept. 8 press statement. “Consistent with America’s bedrock values, we will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them.”

The public charge test potentially impacts approximately 10 million immigrants and 12 million children, many of whom are US citizens, but born into mixed-status families.

“We welcome this long-awaited change in policy. It will have a beneficial impact on millions of immigrants, primarily women and children,” said Essey Workie, director of the Migration Policy Institute Human Services Initiative.

“But while the rule is moving in the right direction, immigrant communities are still fearful of what might happen in the future. A change in administration might bring back the restrictive rules, impacting immigration status,” said Workie in an interview with Ethnic Media Services.

Lawsuits and injunctions are definitely expected, but those must be based on technical or procedural issues. “I don’t see that applying to this situation,” said Workie.

Zenobia Lai, executive director of the Houston Immigration Legal Services Collaborative, said: “The Department of Homeland Security has realized the chilling effects of the public charge rule on immigrant families, especially those with US born children. We must move from that chill to a thaw.”

She noted that benefits received by children or other family members would not count when an immigration officer determines whether an applicant is deemed a public charge. She clarified that only government assistance would count and — under the new rule — would be limited to TANF and long-term medical institutionalization. Lai expressed her hope that those two categories would be removed in the future.

Lai also clarified that benefits received during the Covid-19 pandemic would not be considered for inadmissibility under the public charge rule.

She noted that immigration officers are mandated to weigh in on the totality of an applicant’s financial resources and future income prospects. Almost 60 percent of people applying for adjustment of status will be asked to provide an affidavit of support from a family member or other individual.

“This will be highly considered for the approval of the application to adjust status,” said Lai.

The Trump administration’s rhetoric had a chilling effect on immigrant families. For example, during the Trump administration, more than 240,000 children in Texas were dis-enrolled by their parents from Medicaid and the Children’s Health Insurance Program, noted Anne Dunkelberg, Program Director for the Health and Wellness Team at the non-profit organization Every Texan.

In Texas, one out of every four children has a parent who is not a US citizen. Many of them are undocumented, Dunkelberg noted at a press briefing Sept. 13.

“Parents no longer need to fear enrolling their eligible family members in public benefits. It will not affect their own immigration status,” she said.

There has been so much misinformation about the public charge rule, which has deterred people from enrolling themselves for benefits to which they are entitled, said Jennifer Duarte of Texas-based Project Vida. “Families are still fearful, based on misinformation. The new public charge is a small win in an ongoing battle,” she said.

“Politicians have stoked fear in the immigrant community, and will continue to do so,” said Esther Reyes Martinez, director of immigration policy and advocacy at the Children’s Defense Fund in Texas. She noted that the new rule has been written in a way to make it much more difficult for future administrations to attempt to change it.

Several organizations hailed the new rule. Asian Americans Advancing Justice released a statement, noting that the previous public charge rule was “cruel by design.”

“It was not only meant to favor white and wealthy immigrants applying for admission or a green card, but also aimed to create fear and confusion about the use of critical, life-saving programs within low-income communities of color.”

“Tragically, the issuance of the last rule caused many immigrants of color, including Asian Americans, to withdraw from health care, nutrition programs, housing services, and other benefits,” said the organization, noting that the new rule greatly simplifies the public charge test.

Marielena Hincapié, executive director of the National Immigration Law Center, said in a press statement: “The Biden administration’s public charge rule aligns with longstanding principles in immigration law and provides helpful clarifications to pre-existing guidance.”

“This policy is an important step in advancing the Biden administration’s priority of addressing socioeconomic and racial inequities that have been exacerbated by the ongoing COVID-19 pandemic,” she said.

by Lil Kalish

CalMatters

Nov. 2, 2022 – Wage theft is common in low-wage industries in California.

Tens of thousands of workers — in restaurants, nail salons, warehouses, farms, car washes and other industries – lose out on millions of dollars in stolen wages each year.

Wage theft happens when employers deliberately pay workers below the minimum wage, deny them meal or rest breaks, fail to pay overtime premiums, or engage in other practices to cheat them out of pay.

Last year more than 19,000 workers filed claims with the state alleging wage theft totaling more than $338 million. It takes the state an average of 505 days to decide these individual wage claims, according to Labor Commissioner data, so workers can wait years to be paid.

Besides this, many workers — especially immigrants, persons of color or women — find speaking out about wage theft intimidating and risky.

So what should you do if you find yourself in this situation?

Some advocates and community organizers shared their best practices and advice. Here are their answers to your questions and some advice for workers:

Are the hours you worked and your paychecks not adding up? Does your employer take the tips you earned on the job? Are you wondering why your boss is paying you with personal checks, instead of using a payroll system with the usual paycheck deductions?

Your boss could be stealing your wages.

If your paychecks don’t reflect your work hours or there are other issues with your check, worker advocates recommend asking your boss about it.

But first, says Andrea Gonzalez, a worker advocate, workers should do a little research. Look online for news clippings about your employer. Or search the employer’s name on the Labor Commissioner’s website.

Type the company’s name into their search tool at the top to see if the company has a history of labor violations and complaints from workers. Also you can use the Wage Claims Search and Judgment Search options in the menu on the side of the page. Research could help minimize your risk of employer retaliation.

Gonzalez, who is organizing director of CLEAN, a Los Angeles car wash worker center, advises that if you confront your employer, initiate the conversation with a “curious tone” rather than an accusatory one. Mention that you’ve noticed your hours aren’t matching up with your payment. Or ask to take your legally mandated rest breaks, if that’s the issue, she said.

Any time you meet with your employer, advocates recommend you document the date and time and write down how they respond to your questions.

If your employer does have a history of labor violations, it might be best to first connect with a worker center — a community or nonprofit organization that provides support for low-income workers. There are at least 47 worker centers across the state, and California’s labor offices have partnered with 17 of them for certain industries.

Advocates recommend each worker keep their own updated records of the hours they  work, perhaps in a calendar, a notebook or on a cellphone. If a state or federal agency or a district attorney contacts your employer, a clear timeline of your hours worked as well as a record of any retaliatory actions against you or your coworkers can help move an investigation forward.

Note as many details about your job as possible. For example, log what time you started work, what time you left and what days you get paid. Write down the names of the person who hired you, your supervisor, and the person who sets your schedule, any information relevant to your pay and schedule.

Advocates also recommend documenting any time your boss denies you legally-required meal or rest breaks, or whenever your boss makes you work for more than eight hours, and whether you are paid overtime pay. Generally, for hourly workers, state law requires your employer to pay time-and-a-half for work beyond eight hours a day or 40 hours a week. It’s more if you work beyond 12 hours a day or for seven days straight.

Don’t throw out these records, says Ana Aldama, senior investigator at the Maintenance Cooperation Trust Fund, a statewide janitorial industry watchdog group. Workers should hang onto these records for at least three years, in case the company comes under investigation in the future.

Similarly advocates recommend collecting any documentation of payment such as your paystubs, contracts, agreements for piece rates.

By state law, your employer is required to give you an itemized wage statement. It should include your name; the dates of the pay period; how much you earned; your employer’s name, address, and contact information; federal and state tax deductions, any paid sick leave you accrued; Social Security, Medicare, and any other deductions. This information will help you figure out if you are paid properly and could be useful if you pursue a wage claim.

If your employer pays you in cash, be sure to note how much it is in each pay period. If they pay you in personal checks, take a photo or scan the check. Some employers pay workers with personal checks as a way to avoid paying overtime premiums or workers’ compensation insurance.

You are legally entitled to see a copy of your wage statements, even if your employer doesn’t automatically provide them.

You do not have to confront your employer alone, advocates say. If you believe your employer stole your wages, you have several avenues for help.

You can connect with a worker center in your industry. There, organizers will help you understand your rights and options and support you if you file a wage claim.

You can file a claim with the California Labor Commissioner on your computer, tablet or cell phone. It would be useful to have your notes about your paychecks and hours worked on hand. The state agency also runs an informational website explaining workers’ rights in English and Spanish.

Similarly, you can take federal action and file a complaint online with the U.S. Department of Labor or reach out to one of its nine regional offices.

The state and federal agencies advise workers to keep copies of pay stubs and records of hours worked. Neither agency will ask about your immigration status. Their services are free and confidential.

Some workers choose to hire their own lawyers and pursue private legal action. Gonzalez says that can be costly. She recommends connecting with worker centers or labor organizations whose legal partners do pro bono work.

Worker centers vary across the state. Some, like the California Domestic Workers Coalition or the Garment Workers Center, are industry specific.

Others, like the Los Angeles Black Worker Center or the Pilipino Workers Center in Los Angeles, organize low-wage workers in specific ethnic groups.

Gonzalez says in your first meeting at a worker center, generally a worker advocate will conduct an intake interview to get to know the worker and their situation. They’ll explain your rights to everything from minimum wage to sick leave.

Often when multiple workers from a single employer come forward, the worker center may refer the cases to the Labor Commissioner’s Office. Its Bureau of Field Enforcement investigates employers for possible financial penalties and citations.

To find a worker center in your area, Gonzalez recommends using social media to connect with unions or other labor organizations near you. Or you can start with this sample list.