WASHINGTON -- The immigration bill that the U.S. Senate is to consider next week could force thousands of New York families employing nannies, house cleaners and gardeners who are in the country illegally to make a hard decision: Pay the workers on the books or let them go.
But many of those workers will face hard decisions themselves -- whether to pursue the legislation's offer of provisional immigrant status and demand to be paid on the books in the face of competition from others willing to work for cash.
Those decisions will play out in what labor economists call the murky world of household work, where authorities rarely enforce the law yet the demand for in-home caretakers is one of the fastest growing areas of employment in the United States.
"It's a complicated question," said Jane Henrici, study director at the Institute for Women's Policy Research, a Washington think tank on domestic women's issues.
"We want families to be able to afford care," she said. Yet for the workers, she said, "We hope it will elevate the opportunity to earn a better salary overall."
The nearly 900-page immigration bill allows the 11.5 million people in the country illegally to apply to become registered provisional immigrants, which gives them a Social Security card and a green light to work.
"The whole idea is that after you come out of the shadows and you get your provisional status, you don't want to be off the books," said Muzaffar Chishti, the New York director of the Migration Policy Institute.
Affecting household help
Few provisions in the bill are likely to hit so close to home for many Long Island families as the question of how it will affect household work.
Across the country, hundreds of thousands of families employ caretakers for children, the elderly or disabled, and workers to maintain houses and lawns, according to the U.S. Bureau of Labor Statistics.
Most of the workers are foreign-born and women, and one survey found a third were not in the country legally. At least eight of 10 workers are paid off the books, the study said.
The Senate immigration bill includes measures that will ripple through household work.
More families would face being official employers under its narrower exemptions for casual or sporadic work, said Bill Stock, who is on the executive committee of the American Immigration Lawyers Association.
"If you have a person who comes and cleans your house every week, that's no longer a casual employment," he said.
The bill also requires those who employ domestic help to use a system called E-Verify to check their hire's legal status, starting four years after the legislation becomes law.
It will continue to be illegal to hire an undocumented domestic worker, but authorities rarely go after those who do.
Yet the bill includes no new crackdown on household employers. Instead, it relies on the workers themselves to demand legal employment.
Sen. Charles Schumer (D-N.Y.), a key sponsor, has said a core tenet is that ending employer exploitation of undocumented workers who fear deportation will improve the job market for all workers.
The bill's provision for provisional status would help people such as Anna Romero, a college graduate from Peru, who's working to obtain legal status. She said most summers she has taken a bus from Mastic to Southampton to work "washing bathrooms and cleaning floors."
She said the prospect of provisional status gives her hope.
"I would be able to aspire to something better," she said in Spanish. "I would like to find work in an office and to continue studying. . . . I'd like to give that example to my kids."
The bill gives provisional immigrants an added incentive to find an on-the-books job by requiring they show continuous employment at above poverty-level pay when they apply for renewal of status in six years or legal residence in eight.
A difficult decision
For many families with domestic workers, that would force a tough decision.
"You have to put them on the books, or you have to let them go," said Charlene Obernauer of the labor group Long Island Jobs with Justice.
But there are big incentives to avoid playing by the rules.
Families opting to put a worker on the books must pay added costs of Medicare and Social Security taxes, unemployment insurance and paperwork they had been avoiding, said Rachel Jacobson, an attorney at Kaufman Dolowich & Voluck in Woodbury.
"There is going to be a breaking point: When does the cost of an employee become too much?" said Jacobson.
She said that might not become an issue unless the undocumented worker decides to apply for provisional status.
And that might not be an easy decision for the worker, either.
"For the person to come out of the shadows, they have to be taking a leap of faith," said Bob Sakaniwa, associate director of the American Immigration Lawyers Association.
They might find it hard to provide the right documents or come up with the required money. If they don't qualify, they face deportation, he said.
To get registered provisional immigrant status requires proof of being in the country before Dec. 31, 2011, payment of an undetermined fee, any taxes owed and a fine of $500, and passing a background check.
Competing with new arrivals
The continued flow of undocumented workers into the country, even if the legislation becomes law, will bring in competition for those here who have gained provisional legal status, said Ira Mehlman of the Federation for American Immigration Reform, which opposes the bill.
"I can still hire the guy who came across the border last night on my terms," he said.
In addition, a majority of domestic workers are U.S. citizens or have legal status, and they still work off the books.
Martha Maffei, executive director of SEPA Mujer, in Central Islip, said domestic workers that her group helps worry about competition: "They say, 'She won't hire me if I ask to be paid on the books.' "
Susan Lob, New York organizer for an association of household employers called Hand in Hand, which advocates for work standards and fair pay for home workers, said she wants fair treatment of workers. But she said making families file the same paperwork and taxes as for a big business is unfair.
"Most of us are working people, too," Lob said. "What is fair to ask of employers of household workers?"
Her solution? "We want to amend the legislation to create exemptions from E-Verify for individual employers," she said.
In 1986, Congress rejected such a bid after it was called the "Beverly Hills exemption," Chishti said. This month, Sen. Mike Lee (R-Utah) filed a similar amendment, but withdrew it after it, too, was derided.
But Lob said more and more families will face the burden. "It's growing because of all the baby boomers growing older," she said. "We look at this as a crisis in the need for home-care workers."
With Víctor Manuel Ramos