Staying Compliant with Immigration Laws

Staying Compliant with Immigration Laws

David Daugherty, controller of Coastal Reconstruction Group in Winter Park, Fla., had never heard of E-Verify when he received a letter from the city of Irondale, Ala., after renewing his business license.

The letter cited the Beason-Hammon Alabama Taxpayer and Citizen Protection law, and informed him that when doing any future projects in the city he must use E-Verify, an electronic federal worker verification program.

Such changes, Daugherty says, are making many builders and remodelers a bit uneasy. “We were worried it might become burdensome because now I’ve got to do additional steps to hire an employee,” he says. “It’s a little more administrative work, and possibly [brings] an extra expense.”

However, staying compliant with these laws is essential for businesses. Any business that knowingly hires illegal workers could face stiff civil and criminal penalties, yet illegal workers still manage to slip onto job sites. The Center for Immigration Studies estimated that in 2009, 15 percent of construction workers were either illegal immigrants or lacked the status of legal immigrant authorized to work.

What Do You Need to Know?

Start by reviewing federal requirements. Before hiring or re-hiring a new employee, employers must complete an I-9 Employment Eligibility Verification Form. Remember that you’re required to keep completed I-9 forms on file for three years, or one year after a worker’s employment ends, whichever is later.

Penalties for Non-compliance

Businesses that fail to comply with I-9 requirements can be charged multiple penalties based on the violation and whether it is a first, second or third offense. For failing to comply with I-9 form requirements, penalties range from $110 to $1,100, according to the U.S. Citizenship and Immigration Services’ website. Businesses with a pattern of knowingly hiring unauthorized workers could face fines up to $3,000, per illegal alien, and up to six months in jail for the owner. In Arizona, businesses hiring undocumented workers also face suspension or revocation of their business license.

Don’t Start the Process Too Early

You may not begin the Form I-9 process until a job offer has been accepted, and employers have three days to verify that the person has the authority to work in the United States. The I-9 form includes what documentation is necessary to establish a prospective employee’s identity and employment authorization. Citizens, permanent residents, immigrants with work authorization documents and certain visa holders are all authorized to work in this country, says Michael Wildes, a lawyer who specializes in immigration law and is a managing partner of Wildes & Weinberg, P.C. in New York.

How does E-Verify work?

This web-based system run by the Department of Homeland Security (DHS) and Social Security Administration (SSA) is expanding its footprint. Businesses must run all employees working on any federal contract through E-Verify, which compares Form I-9 information against a federal database of eligible workers in the United States. Employers in Arizona, Mississippi and elsewhere are starting to mandate the program, meaning you may have to use it if you plan to do business there.

However, using E-Verify to prescreen candidates is illegal — it’s intended to verify the status of people once they’re hired. The program is still somewhat controversial. Wildes advises his clients to use with caution, saying errors in the database have caused some legal workers to be fired.

What About Subcontractors?

Finally, take an interest in all your workers, no matter who hires them. Builders may protect themselves from liability for a worker’s status by stipulating in subcontractor agreements that subcontractors need to provide legal workers.

Under federal immigration law, a general contractor is not required to complete Form I-9 verification for the employees of its subcontractors or to monitor its subcontractors' Form I-9 compliance, says David Crump, director of legal research for the National Association of Home Builders (NAHB) in Washington, D.C. Crump recommends using protective clauses in subcontractor agreements, but he urges builders to work with a lawyer to add the appropriate language, as jobs vary one to the next.