Keeping your company on the right side of the law

After years of benign neglect, construction work sites are being targeted by the Immigration and Customs Enforcement agency, part of the reorganized Immigration and Naturalization Service (see “Where did the INS go?” in the sidebar on page 52). The number of arrests made by ICE agents is up 88 percent since last year and the agency won 127 criminal convictions in 2005, up from 46 in 2004.

In most cases, it’s the illegal or undocumented workers who are hauled off in handcuffs. But with terrorism and secure borders hot topics right now, the government is taking a get-tough stand and arresting company managers as well.

On May 9, four construction site supervisors along with 76 suspected undocumented aliens were arrested on work sites run by Fischer Homes in the Cincinnati/Northern Kentucky area. Affidavits in the case allege Fischer Homes used subcontractors as a buffer between it and the illegals.

Additionally, there has been a big push to round up undocumented construction workers on government property, sensitive sites and critical infrastructure. Some of these include:

  • June 14: Dulles International Airport, 55 employees of Lane Construction and another unnamed company arrested;
  • May 23: Camp Pendleton Marine Corps Air base, 29 employees of Standard Drywall arrested;
  • August 26, 2005: Fort Irwin, California six Mexican nationals arrested while working for Laurence Hovenier, a construction company building housing at the base;
  • July 26, 2005, Homestead Air Base, Florida, six illegal aliens working on a runway resurfacing project were arrested after military police noticed irregularities in their documents.

The difference between a bust that costs you a few laborers and a bust that gets you or your supervisors arrested or slapped with a heavy fine is what the government calls “knowing” violations of immigrant labor laws.

How the term “knowing” is defined depends in large part on how the U.S. attorney general’s office in your area of the country defines it. But basically, if you know, suspect or have reason to suspect some of your workers are here illegally – or as the Fischer Construction case cited above indicates – if you know or suspect your subcontractors are using illegals – then you’re in the wrong and you could be arrested.

A wink and a nod and a look the other way isn’t going to cut it. If the federal government successfully prosecutes its case against Fischer Homes, the company’s executives and subcontractors could be looking at up to 10 years in prison and fines up to $250,000.

Dealing with documentation
If you are concerned about the legal status of the Hispanic immigrants you hire, an Internet search for “fake green cards” is not going to be comforting. Almost any search with the term “green card” in it produces dozens of sites that offer to sell you fake green cards, driver’s licenses and social security cards.

Almost anywhere you look today you can obtain high quality, fake documents for as little as $150. Digital scanners and high tech printers make extremely accurate copies – even some that can create the holographic images found on high-tech driver’s licenses.

The good news is the government understands this and does not expect you to be a document expert. As long as the fake documents are not obvious (such as social security numbers that have more than nine digits) and you’re not committing “knowing” violations of immigration laws, you’re not going to be penalized even if they find illegals on your jobsite.

Verfiying immigrant worker documentation is easy to do, says Sharon Rummery, a public affairs representative at the United States Customs and Immigration Service office in San Francisco. “You can stay within the law and you can do it with confidence.You don’t have to be afraid that somebody has shown you phony documents. It’s easy to get it straight right away.”

I-9 is not a freeway
To keep all your hiring practices within the law there are a couple of steps you have to take. First, for any new employee, U.S. citizen or not, the employer and the employee have to fill out a United States Customs and Immigration Service Employment Eligibility Verification, or I-9, form. The form is available by calling (800) 870-3676 or on the website.

The I-9 form is filled out the day you hire an individual and is kept as part of that person’s permanent file. It requires the new employee to show documents that attest to their eligibility to work in the United States. For immigrants that usually means a green card (I-551). But note that the “green card” isn’t really green and its official name is the Alien Registration Receipt Card. There are several other documents that grant authorization to work as well, such as the Temporary Resident Card (I-688), Employment Authorization Card (I-688A) or the Employment Authorization Document (I-688B). It is important that as the employer you verify the documents are original and not photocopies. Another important note: You and the employee must fill it out on the first day of employment. It cannot be back dated or filled out during the employment application process.

Keep in mind you cannot refuse employment to an applicant just because you suspect he or she may not be here legally. This can be a situation loaded with minefields for employers. If the person has the documentation required on the I-9 form and you refuse him or her the job only because you think the individual may be here illegally, you’ve violated federal anti-discrimination laws and may be penalized. If the person has the required documentation you have to assume he or she is here legally.

Also recommended is the USCIS “Handbook for Employers, Instructions for Completing Form I-9.” It’s free and available on the agency’s website and can help answer a lot of the questions you may have about the form and the documents. You’ll find it at this site.

Basic Pilot Program
One way to more accurately verify the legality of your workers is the Basic Pilot Program run by the USCIS. With Basic Pilot you send the information your new hires give you to the USCIS via the Internet, and USCIS compares the information against the Social Security database to make sure the worker is here legally. Unfortunately the process can seem convoluted – especially if you’re trying to find workers for a job that’s running behind.

If the documentation doesn’t align with what’s on the database the answer from the USCIS will come back as “not authorized.” This doesn’t necessarily mean the person is an illegal alien, Rummery says. “You’re required to keep that person on the payroll and working until he checks in with us and Social Security. He or she gets eight working days to call or go to the Social Security office and find out what the problem is. If they don’t do that within eight days you’re within your rights to terminate employment. And if you keep that person on the payroll longer than that it constitutes a knowing hire violation and you can be penalized for that.”

The USCIS will also provide employers with posters and stickers the company can display that show it participates in the Basic Pilot Program. “A lot of times people turn around and walk out when they see that,” Rummery says.

Participation by employers in the Basic Pilot Program is not mandatory, but it is the best way to ensure all your hires are legal. For more on the Basic Pilot Program call (888) 464-4218 or visit and under the “Hot Topics” column choose employer information and click on the Employment Verification Pilot Program.

Minimum administrative effort
Sundt Construction, headquartered in Phoenix, Arizona, has been using the Basic Pilot Program since the mid-1990s. “We like the program very much,” says Mona Joseph, human relations generalist for the company. “It allows us to comply with federal law and maintain a legal workforce.”

Sundt started using the program in its San Diego office and has expanded it to all the company’s regional offices covering more than 1,000 employees on the West Coast and the western United States, Joseph says. “We run the names on every single person who comes to work for this company,” she says.

Setting up the company to participate in the program required minimal administrative effort, Joseph says. “The user has to pass a tutorial to be able to sign on and obtain a password,” she says. After that it takes less than five minutes to process a name and Social Security number through the system.

The company also uses posters provided by USCIS to alert potential applicants that it participates in Basic Pilot. “We put them in English and Spanish right where the applicant can see them when they walk in the door,” Joseph says. “We also post what is required for documentation so they know they should have that before they can come to work for us.”

When on rare occasions a name comes back from USCIS as not authorized, Joseph calls the jobsite and tells the supervisor to get the employee back into the office to take care of the problem. Sometimes supervisors don’t want to send back an employee, especially if they are a good operator, she says, but when they’re informed of what the penalties to the company might be if that worker can’t prove his legality, they will comply.