”None of the funds appropriated . . . to the Legal Services Corporation may be used to provide financial assistance to any person or entity . . . that provides legal assistance [to] any alien, unless the alien is present in the United States and [is a legal permanent resident, is a close relative to a citizen and has an application pending for status as a lawful permanent resident, has been granted asylum or admission as a refugee including conditional entry as a refugee prior to April 1, 1980, whose order of deportation has been withheld by the Attorney General, or belongs to a narrow category of lawfully admitted agricultural workers].”
Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 504(a)(18), 110 Stat. 1321, 50 (1996).
What is the history of the restriction barring representation of most aliens?
- In 1980, Congress prohibited legal services lawyers from using Legal Services Corporation (LSC) funds to assist many aliens. If they could secure other funding to support the work, however, LSC-funded lawyers remained free to use non-LSC-funds to represent aliens.
- In the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Congress barred LSC-funded lawyers from providing any assistance to many undocumented persons, whether using LSC-funds or non-LSC-funds. Now, LSC programs—the only source of legal assistance in many parts of the country for the poorest and most vulnerable people—cannot help most aliens, even those in critical need of legal assistance.
Why is it important for legal services lawyers to assist aliens?
- Aliens are uniquely vulnerable to illegal and abusive conduct by employers, landlords, con artists, spouses and others. Believing that the poverty and fear of deportation of many aliens will discourage them from seeking legal or police assistance, unscrupulous people seek them out as easy prey. Although various federal and state agencies have responsibilities for ensuring compliance with the laws that protect aliens and other people, they often lack the resources to effectively oversee everyone within their mandates.
- In rural Texas, aliens have been sexually harassed, denied overtime pay, and paid wages below the minimum required by law. Fearful of deportation, aliens are often reluctant to complain of these problems without assistance. One Cambodian woman, testifying about these problems before the Equal Employment Opportunity Commission, pleaded, “Do something to protect us immigrants.”
- A recent investigation by the U.S. Department of Labor found that eighty percent of California’s vineyards, which employ large numbers of aliens and recent immigrants, violated the wage and labor rights of their workers. Most employers failed to pay their employees the legally required minimum wage, and many provided unsafe housing and transportation to workers.
- Shortly after Congress enacted the restriction in 1996, a Cuban immigrant who had been denied assistance in seeking a protective order by an LSC-funded lawyer was shot and killed by her abusive husband. In reaction to this tragedy, Congress modified the restriction to permit LSC-funded lawyers to provide limited assistance to abused spouses and children regardless of their immigration status.
- In 2000, Congress also authorized LSC-funded lawyers to assist certain victims of human trafficking, including sex trafficking, regardless of their immigration status. Most other aliens, however, remain unable to obtain legal assistance to protect themselves from dangerous or illegal conduct.
- The restriction against assisting aliens bars LSC-funded lawyers from helping tens of thousands of people who are legally present in the United States. For instance, the current ban prohibits LSC-funded lawyers from helping temporary, non-agricultural workers who work legally under what is known as the “H-2B” program. Additionally, the restriction prohibits the provision of legal assistance to individuals with temporary visas, such as students, as well as to individuals granted Temporary Protected Status because they come from a country that the United States has recognized as being in turmoil.
Why is it important for legal services lawyers to enforce laws on behalf of clients, including aliens?
- The legislatures of the federal government and the states have passed laws to protect people from a variety of injustices—from spouses who attack their partners, from landlords who fail to provide heat, from employers who refuse to pay promised wages, and from insurers who will not honor their contracts. These laws apply equally to all people in the United States, regardless of their immigration status. But without the assistance of lawyers to tell people of the law and enforce rights, these laws go unheeded.
- In Long Island, New York, fourteen workers from El Salvador won a settlement from their employer, an industrial laundromat, when lawyers helped them advocate for their legal right to overtime pay.
- In Texas, LSC-funded lawyers for migrant workers have found that local companies are more likely to comply with state and federal wage laws when they fear a lawsuit should they violate their employees’ legal rights. LSC-funded lawyers representing those migrant workers who remain eligible for legal assistance are able to file suits against out-of-state employers who refuse to follow the law.
- When asked about the failure of employers to comply with housing and wage laws for migrant workers, an agent at the Kentucky Farm Bureau said: “But they’re illegals, so they’re not going to raise a big stink about it.”
Why do LSC’s opponents want to prevent LSC-grantees from helping aliens?
- Employers who benefit from underpaying or otherwise taking advantage of immigrant workers are the most vocal opponents of the provision of legal services to such workers. These employers know that if their employees gain access to lawyers, laws requiring decent working conditions and fair wages will be enforced. Unfortunately, the 1996 ban against LSC-funded lawyers assisting many aliens occurred just as American business was relying on an increasing number of these workers to make up for the unavailability of American workers in labor-intensive sectors of the economy, such as forestry, agriculture, and the restaurant industry. Some experts estimate that as many as half the migrant workers in these and other industries cannot go to an LSC-funded lawyer for legal assistance because of their immigration status.
- In 2001, the Virginia Farm Bureau, a branch of the American Farm Bureau Federation, which represents agribusiness throughout the country, heavily lobbied the Virginia legislature to prohibit legal services lawyers from using state funds to represent migrant workers. The Farm Bureau knew that restricting lawyers would prevent effective enforcement of minimum wage laws and laws requiring provision of safe drinking water, bathrooms, and seasonal housing. By threatening to pass comprehensive legislation that would handcuff legal services lawyers in Virginia in their efforts to represent all their clients, the Farm Bureau forced the legal services community to completely cease using state funds to represent migrant workers in employment matters.
- Some people also argue that the federal government should not pay for any services, even legal assistance, to aliens. The current restriction does more than restrict federal funds, however, because it bars an organization that accepts even one penny from LSC from helping any aliens—even if the organization obtains funding from other sources to provide those services. If private donors or local or state governments want to help low-income individuals including aliens, they must contribute to organizations that do not accept LSC funding. This situation wastes money, because it gives rise to duplicative organizations that are barred from working together to provide efficient services.
This Fact Sheet was prepared by Philip Gallagher, Associate Counsel, Katz Fellow, Poverty Program, Brennan Center for Justice at NYU Law School. Date—April 12, 2001