The director of Federal Affairs for the National Roofing Contractors Association (NRCA), R. Craig Silvertooth, updated Best of Success attendees on immigration law and impending legislation in his session titled “Immigration and Construction.”

Craig Silvertooth, director of Federal Affairs for the NRCA, outlined steps an employer should take as a reasonable response to receiving a no- match letter from DHS.


The director of Federal Affairs for the National Roofing Contractors Association (NRCA), R. Craig Silvertooth, updated Best of Success attendees on immigration law and impending legislation in his session titled “Immigration and Construction.”

Silvertooth began with some interesting statistics on construction’s role in the economy, noting that construction increased 137 percent over the last 12 years, while the nation’s gross domestic product (GDP) grew 87 percent over the same period. “Construction growth has outpaced the general economy,” he said, “and that’s why we are facing a labor shortage.”

He pointed to a March 2007 report from the Pew Hispanic Center to document the influx of Hispanic workers. “The report indicated that the construction industry employed 2.9 million Hispanics in 2006,” he said.

According to the Pew report, Hispanics account for 25 percent of the construction industry’s employee workforce and represent two-thirds of the new employees coming into the industry, and the majority of those workers were foreign born. He outlined some recent attempts at immigration legislation, including the Kennedy-Kyl effort (S. 1639), which went down to defeat when the Senate voted against ending debate on the bill on June 28 by a vote of 46-53. “If you listen to talk radio you wouldn’t know it, but 68 percent of Americans favored the approach of the Senate bill that failed earlier this year,” he said.

Silvertooth also reviewed current I-9 requirements. Form I-9 is issued by U.S. Citizenship and Immigration Services, and is available at www.uscis.gov.

“Since passage of Immigration and Reform Control Act (IRCA) in 1986, all U.S. employers are required to verify all employees,” he said. “Employers who violate IRCA are subject to civil and criminal penalties.” He explained the ramifications of the Department of Homeland Security’s “no-match rule,” noting, “Employers may violate the regulation if they are found to have ‘constructive knowledge’ an employee is unauthorized.”

Examples of constructive knowledge include written notice from the SSA that the name and Social Security number submitted do not match agency records, or written notice from DHS that the immigration status document or employer authorization document referenced with form I-9 was assigned to another person. Silvertooth outlined steps an employer should take as a reasonable response to receiving a no-match letter.

“First, employers must check records ‘promptly’ - within 30 days of receiving the no-match letter,” he said. If the discrepancy cannot be resolved, the employer must:
  • Contact the employee and request confirmation that the employee’s information is correct.
  • If the information is incorrect, the employer must correct the employee’s information in their records and inform relevant agencies of the correction.
  • If the records are correct, then the employer must ask the employee to pursue the matter themselves with the SSA. If the employee resolves the matter, the employer should follow the instructions on the no-match letter to correct the information with SSA.
“If work authorization and work identity cannot be verified, the DHS rule requires employers to choose between terminating the employee or facing the risk DHS may find the employer had constructive knowledge,” Silvertooth said.

There are problems with the rule, Silvertooth maintained, including the accuracy of SSA records and a disproportionate burden on small businesses. “In fact, it targets the wrong employers - not the people who pay cash off the books, who are the biggest offenders.” He outlined state initiatives to address unauthorized workers that have arisen in Arizona, Tennessee, Colorado, Oklahoma, Texas and Georgia, concluding, “Because of federal inaction, states and localities are moving to fill the void.”