In the FY 2022 budget Revenue bill that was passed by the Legislature, there was a $2.1 billion item earmarked for excluded workers.  The intent is to provide direct COVID relief funding to individuals who did not qualify for the federal funds either through enhanced unemployment or stimulus funds (due to not meeting the citizenship threshold). The majority of excluded workers are undocumented immigrants, many of whom are an important part of our workforce whether it be in agriculture, medicine, restaurants, hospitality, landscaping, etc.  Just like many others, many undocumented people lost their jobs during the pandemic, particularly in New York City, but also in other areas of the state.  The funding support is allocated in two different amounts – $15,600 or $3,200 depending on if qualifying in Tier 1 or Tier 2.  I will explain below the difference between the tiers.

On the surface, this sounds fair, and we could have a discussion about those who are undocumented workers who have what is known as an Individual Taxpayer Identification Number (ITIN) since these individuals go to work daily, are easily identifiable by their ITIN (since it is government-issued), and pay income taxes despite their undocumented status.  Not many people realize that undocumented workers pay income taxes up to the tune of $1 billion a year, according to some sources.  The workers who have ITINs are Tier 1 individuals and therefore if they met the thresholds, they would be eligible for up to $15,600.  However, the issue is not the individuals who have ITIN numbers but the gray area with defining the Tier 2 workers.  These are workers who work “off the books” in businesses and therefore have little, if any, documentation to support their work. Without documentation that would make someone eligible for the higher Tier 1, a Tier 2 was created to allow those without an ITIN to be eligible for up to $3,200.

First, I would like to discuss some of the changes that the measure underwent based on concerns that were raised. The initial proposal was for $3.5 billion in funding and would not have had some of the protective measures that were ultimately included.

The first issue was to confirm residency and ensuring that it is New York State residents who would be the beneficiaries. The modified bill requires individuals to demonstrate through one of many different forms of proof that the individuals were New York State residents from March 2020 to the present and that they missed up to six weeks of work.  They also would need a letter from their employer explaining that although they were not paid on the books, they lost their job due to the pandemic.  I find this very challenging because individual business owners will now have to verify that they were violating laws and individuals who were working off the books must do the same. They will have to admit to what is technically a criminal offense. This presents a challenge for both from my perspective for the undocumented people who may be trying to become citizens and the action may cause a problem if they are seeking to pursue citizenship, let alone stay in this country. The exploitation of undocumented workers by employers is something that we have passed legislation in this very Legislature to address and so it does not seem unreasonable that this measure could be used as leverage against the undocumented worker.

Taxes are another issue that came up. New York did not waive taxation of unemployment benefits in the same manner that the federal government did on up to $10,200 for 2020. Unemployment assistance is therefore fully taxable in New York and the initial proposal would have deemed this program non-taxable.  That has been corrected in the final measure. It seemed inconsistent that one group would have to pay taxes and another would not. Once again our leadership listened and is now requiring that those who are receiving the $3,200 amount withhold 5% for tax-like purposes, although they are not filing taxes. For those receiving $15,600 in Tier 1, there is the expectation they are going to be filing and paying the taxes.

Like many issues, there is no simple explanation for my position on this issue. There were questions and discussions throughout the evolution of this proposal from the initial proposal all the way to the final agreement. As one who supported the Dream Act, I understand the importance of treating individuals fairly and equitably and I know there are many hard-working undocumented individuals who were negatively impacted by COVID-19 and need help. I absolutely understand that. As I said earlier, if we were focused on undocumented workers who have an ITIN like all other workers, that is an easier discussion. Keeping in mind the issues that the NYS Department of Labor (DOL) has faced in dealing with fraudulent claims (due to data breaches) and handling regular unemployment claims, the ITIN applications would be the most straightforward to process. However, like anything else we have to look at fairness on all sides.  We know that the COVID-19 pandemic has disproportionately and negatively impacted women of color in the workforce. The young single mom who went to work every day at the local grocery store at her minimum wage job and who worked throughout the pandemic and continues to struggle. Or the mother who had to leave her job voluntarily because her child did not have childcare because the daycare closed and therefore she was unable to apply for unemployment. This budget has other provisions that will help address many of the pandemic-related childcare, housing,  and food insecurity issues that these women and others face but the question of fairness does come up.

What is more concerning is the potential fraud that can arise and I want to be very clear that I do not mean fraud by undocumented workers.  There is a cottage industry of those who manipulate and will take advantage of unsuspecting good people and take their money. As previously mentioned undocumented workers are unfortunately not only exploited by their employers but also those who seek to take advantage of language barriers and a lack of knowledge about the rights that they do have. It will happen and we need only look at the fraud issues that have arisen with the regular unemployment program run by the Department of Labor to see that this is ripe for abuse. Those who are currently employed and who have never applied for unemployment benefits have seen applications completed in their names due to data breaches and then when they do lose their jobs, their legitimate applications are delayed.

I give credit to our leadership in the Assembly who have worked hard to find common ground on this program.  The reality is that although this was an idea that was introduced in the past year, not many individuals saw it as possible since we did not have the resources to even have the discussion. Due to the support of the federal government, the state is in a better position and this topic came to our conference due to members who have large populations of undocumented individuals in their districts.  I give them credit for doing their job as they are representing the people who they serve.

I represent those who I serve in the 108th District and for that reason, I cannot support the policy as it stands, especially as it relates to individuals who do not have ITINs. I am sympathetic to the plight they face. I represent communities of color who have suffered from racism, redlining, and historical policies that have been unfair and harmful. Each day I work toward creating a more just society for those who have been wronged. I have worked with these same constituents for the past year on the many unemployment claim problems they have with the Department of Labor.  There are concerns regarding how this program will be administered and I wonder whether the DOL has the capacity to handle these new types of claims in addition to the already pending claims which theoretically should be easier to process. We need only look at the rental relief money that has gone unspent to see how the programmatic challenges can hamstring money that is much needed. I am not advocating for inaction, but instead that a good start would be to begin with undocumented immigrants who have ITINs to ensure a simplified process and get the funds out as quickly as possible. I do not think that it is unfair to question DOL’s bandwidth or to propose an alternative measure. How is the NYS DOL going to handle the additional work and undertaking that will be necessary to administer a brand new program when the current system is rife with issues? This will be a labor-intensive endeavor at a time when claimants often cannot reach DOL by phone. I wrote a letter earlier this year to the DOL Commissioner expressing concerns with the fraudulent claims creating issues for my constituents and the inability of claimants to reach DOL to clear up the issues.

Also, paying taxes is one of the steps that those who are pursuing citizenship take. I understand that there are challenges for those who seek citizenship and the federal process. That is a whole other conversation. There are plenty of other ways we can support those who have been negatively impacted and I wish that my suggestions about providing more support for programs and nonprofits who are at the ground level were included in this proposal. If it was, we could make sure that each and every penny of public funds directed would help with rent, food, clothing, and other needs that children have, etc. Unfortunately, that is not the case with this proposal.

When my ancestors came to this country they came to pursue opportunity and to flee oppression, just like many who come to this country today.  That being said, that journey was about the opportunity to live in a free society. Unfortunately, due to the failures of past federal administrations, Democratic and Republican, our immigration system is failing those who come here, especially those who have worked as essential workers during the COVID-19 pandemic. This issue is best fixed at the federal level so that states like New York are not relegated to trying to fix a problem that, in my view, puts immigrants in a potentially worse situation and moves public resources away from the majority of residents who struggle to provide for their families as well.

On a broader note, I think it is important to remember that we can agree on the end goal and not the means. I have been hearing more often lately that I am opposed to things that I am not actually opposed to in principle (even when I have emphatically stated I am not opposed to what is trying to be accomplished). We can agree on a goal and we can differ on the best approach or the specifics of a proposal. Lately, many of the conversations have been “if you are not with us on how we want to do it, you are against us.” I respect the frustration that many feel about the pace of policy change; however, I hope that others can understand that it is frustrating to have your position misstated. I recently received a message asking me to explain myself for my “opposition” to a measure that I actually cosponsor. I had already indicated on numerous occasions that I was not opposed to the overall goal of the legislation in question but needed to review specific concerns. Understanding and appreciating the nuance in our opinions, experiences, and positions makes us better policymakers. Asking questions, having conversations, and raising concerns makes us all better, more informed people and leads to better policies that many of us can support. I hope that we can keep talking to each other and learn from one another while keeping an open mind. Heck, that is what government should be about!