Compliance Tips When Hiring Immigrant Workers

According to the Department of Labor's Bureau of Statistics, over 15% of the entire workforce within the U.S. is comprised of foreign-born workers. Of this figure, approximately 25% of foreign-born are employed within the construction industry.

Although immigrant workers are a welcomed employment source for many construction businesses, ongoing compliance with immigration laws and safety requirements can be challenging. As an employer, consider the following tips when hiring immigrant workers:

• Obtain the current Form I-9: Make sure you are using the most updated U.S. Citizenship and Immigration Services (USCIS) Form I-9. The most recent form was released in August, 2009.
• Conduct Annual I-9 Training: According to The Department of Homeland Security (DHS) Immigration and Custom Services (ICE), it is advisable to establish an annual training program to manage the proper completion of Form I-9, and how to detect the use of fraudulent documents. This should also include E-Verify training, where applicable.
• Schedule I-9 Audits: Another method to assist in the compliance process is to perform Form I-9 audits.
  Periodic audits should be conducted by an external firm, or by a trained worker who is not directly involved in the internal Form I-9 process. If your construction business has multiple locations, consider unannounced branch audits to further enforce compliance requirements internally.
• Do not outsource immigration responsibilities: As a general rule, it is advisable to refrain from outsourcing immigration compliance responsibilities. Not keeping your immigration compliance responsibilities internal can place your business at risk, and lead to expensive liabilities.
• Avoid violating anti-discrimination laws: As an employer, do not request any specific documentation during the I-9 process that includes a new worker's SSN; doing so may constitute discrimination on the basis of employment status.
• Consider worker classification: Employers must keep in mind that immigration labor laws apply to all workers, regardless of worker classification. For example, within the construction industry it is very common for employers to hire both contract and subcontract workers. Employers who hire contract and subcontract labor are subject to the same liability as if a worker was a direct hire: you must not employ any worker if there is constructive knowledge that the worker is unauthorized to work in the U.S.
• Establish company immigration compliance policy: As an employer, it is critical to enforce a culture of immigration compliance within the workplace. Establish a company-wide policy that is accepted and adhered to by all levels of the organization, especially top management.
• Stay current on state immigration laws: States pass their own laws in regards to immigration. Make sure you stay abreast of requirement updates, and clearly understand how new requirements affect your business.
• Develop a system to handle "No-Match" letters: Employers receive a "no-match" letter from the Social Security Administration (SSA) when a mismatch exists between the reported name or SSN, and the SSA record. The purpose of the letter is to obtain corrected information. Employers should develop a protocol to address no-match letters immediately, as failure to do so may prompt an ICE investigation. The USCIS's E-Verify system helps alleviate some of the headaches involved with no-match letters: The E-Verify system allows an employer to validate a newly hired worker's SSN against the Social Security Administration (SSA) database, and to check an Alien Number against the Department of Homeland Security (DHS) database.
• E-Verify mandates: As of 2009, E-Verify is required for federal contractors and subcontractors offering construction-related services. This includes contracts over $100,000, and subcontracts over $3,000. Construction businesses awarded a federal contract must enroll with E-Verify within 30 days of the contract award, and take the necessary steps to confirm that all of their employees are legally authorized to work within the U.S. In addition, employers utilizing the E-Verify system, whether participation is voluntary or involuntary, are required to post the E-Verify Notice, and the Department of Homeland Security Anti-Discrimination Notice in their workplace.
  Avoid harboring: Employers should note that any type of harboring activities, such as offering housing or transportation to undocumented workers puts an employer at very high risk. Avoid harboring activities at all costs, as ICE implements very severe consequences for this type of activity, more so than hiring undocumented workers.
• Bilingual training: Employers should implement ongoing training and education in both English and Spanish, or whatever secondary language best represents the nationality of their immigrant workforce. Training should include how to properly utilize construction equipment and tools, hazard identification and prevention, as well as what to do in the case of an emergency. In addition, it would be helpful to employ bilingual workers who could assist in translations when necessary.
• Bilingual poster requirements: As required by law, post state and federal Labor Law Posters, as well as OSHA Safety Posters in both English and Spanish. All workers must clearly understand requirements, regardless of their nationality, and know what is expected of them on the worksite.

Overview

Most construction employers agree that immigrant workers offer a very viable employment resource. However, ongoing immigrant compliance requirements, and the increasing number of injuries and fatalities make immigrant workers more of a liability than their native-born counterparts.

Luckily, by proactively adhering to immigration laws and safety requirements, employers can minimize the heightened liabilities caused by their immigrant workforce. Immigrant workers are a welcomed resource for many employers, and have assisted in some very important construction projects throughout the U.S. In addition, many immigrant workers are very hardworking, loyal, and will often take on jobs that their native-born counterparts refuse.

The article within is designed to provide employers tips on ways to simplify immigration compliance requirements. For precise information on individual circumstances, seek the appropriate legal counsel.

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