Since taking office in 2017, President Donald Trump has made immigration reform and enforcement a primary focus of his first term. From big ticket items — such as building a border wall and increasing U.S. Immigration and Customs Enforcement (ICE) raids — to smaller, more under-the-radar policy shifts, such as increasing green card interviews and rolling back long-standing immigration policies, these changes are a big shift from previous administrations.
Early in his presidency, Trump signed the “Buy American and Hire American” (BAHA) executive order, which has had profound effects on many immigration rules, regulations and policies. Essentially, the BAHA policy puts an emphasis on promoting American industry and the production of American-made goods and products by increasing employment rates in the U.S. and decreasing the use of foreign workers and the amount of manufactured goods produced outside the U.S. by American companies. As a result of this shift in policy, many industries have been caught in the crosshairs, including roofing.
Should Trump win a second term, it’s highly likely immigration will continue to be at the forefront of the administration’s focus. As an industry that has long held heavy ties to the immigration system, it is important for roofing contractors to understand the current immigration legal climate and how to navigate it with sound business judgment.
I-9 Compliance and Audits
One big focus in the administration’s push for immigration reforms is in the area of I-9 compliance as a way to combat undocumented workers. The I-9 is a form that the U.S. Department of Homeland Security (DHS) requires every U.S. employer to complete to verify each new employee’s identity and eligibility to work in the United States, including both citizens and noncitizens. Note that I-9 forms are not required for independent contractors.
Every new employee must complete section 1 of the I-9 on their first day of employment and must provide proper documentation proving their identity and eligibility to work in the U.S. within three days of the start of their employment. The I-9 form includes a long list of acceptable documents that employees can use to establish their identity and employment eligibility. Employers must let the employee choose which documents on the list to supply and cannot dictate that only certain documents may be provided.
With the exception of birth certificates, the employee must present original documents, not photocopies, and expired documents are no longer acceptable. The employer bears the responsibility of reviewing the I-9 form, ensuring it is properly completed, and having the employee make any necessary corrections. If the documents provided by the employee reasonably appear to be genuine and relate to the employee, the employer must accept them; however, if the documents do not reasonably appear to be genuine or relate to the employee, the employer must reject them and provide the opportunity to present other documents on the list. If corrections to an I-9 form are needed, you should not fill a new form; rather, the changes should be made on the original form with the changes initialed and dated.
IRE Session TH02
Title: Top 5 Immigration Issues for Roofers
Speakers: Trent Cotney, Cotney Construction Law
Date: Thursday, Feb. 6, 7:45 a.m. to 9:15 a.m.
Although the forms are not sent off to any government agency upon completion, employers are required to maintain completed I-9s for a designated period of time. Specifically, employers must keep all original I-9s on file for all current employees and for former employees, must keep them on file for at least three years from the date of hire or one year after employment ends, whichever is longer. DHS can request to review a company’s I-9s and verify employment eligibility at any time. DHS does this through an audit conducted by its enforcement arm, ICE.
Generally, ICE initiates I-9 audits on a random basis. However, ICE can initiate a targeted I-9 audit when it has reason to believe that I-9 compliance issues exist at a particular business, including the suspicion of hiring undocumented workers. ICE will usually initiate an audit by sending a letter that gives the employer at least three business days’ advance notice to prepare for ICE officers to come to the employer’s location and pick up its original I-9 forms for all employees.
During the three-day preparation period, the company should make copies of all of its I-9s so that ICE can take the originals. ICE officers will then show up in person on the scheduled date to pick up the company’s I-9s, so it is important to make sure your receptionist or whomever ICE will first encounter at your offices is prepared and knows who to contact to come meet with the officers and produce the company’s records. ICE will then review the I-9s and determines if the employer complied with the law and whether to impose any penalties.
The best defense to any I-9 audit is maintaining compliance with the laws and regulations. Here are some tips to help ensure your company is and remains I-9 compliant:
- Always check to make sure you are using the most current version of the form.
- Understand what documents are acceptable and the different document combinations that are allowed under the regulations.
- Routinely conduct internal audits of the I-9s.
- Re-verify any expiring work authorizations and do not allow an employee to work if they cannot produce renewed documentation of their eligibility to work in the U.S.
Oftentimes, ICE will use the evidence from an I-9 audit to obtain search warrants for a raid of an employer’s premises. While ICE raids cannot be stopped, the following tips can help minimize the damage from an ICE raid:
- Ask for and make sure ICE agents present a judicial warrant signed by a judge — ICE can only enter the public space of the premises without a warrant.
- Train your staff on how to handle and respond to an ICE raid, including what to do, what not to do, and who to call when ICE officers show up.
- Never obstruct or argue with the officers; smile and be polite.
- Do not destroy any documents including current or old I-9s or any other company records.
- Hire counsel as soon as possible.
E-Verify is a tool that businesses can use, and in many states are required to use, to help avoid I-9 audits and ICE raids. It’s a free, web-based system where employers can enter the information from their employees’ I-9s to have the information compared against records available to DHS and the Social Security Administration to immediately verify employment eligibility.
The E-Verify program does not replace the I-9 or remove the employer’s obligation to comply with the I-9 process. Since 2007, enrollment in E-Verify is required for all federal contractors. Currently, 20 states require E-Verify to be used by some or all employers in the state. E-Verify remains voluntary for employers in the remaining states, though the Trump administration is considering including mandatory nationwide E-Verify in its immigration reform proposals.
For those employers who are not required to use E-Verify but are considering using it voluntarily, whether to enable them to bid on federal contracts or otherwise, it is important to determine whether enrolling in E-Verify is a sound business decision, because for many in the roofing industry, this requirement can have a profound effect. Enrolling in E-Verify for purposes of becoming a federal contractor will require the verification not only of all workers who will perform work under the federal contract but all other current and future employees, regardless of whether they perform under the federal contract. Thus, roofing contractors will need to determine whether exposing their workforce to the DHS is worth the benefits they will receive from obtaining federal contract work.
H-2Bs are visas that roofing contractors may be able to use to bring in temporary workers from foreign countries to fill temporary employment needs. Before an employer can seek foreigners for a position under an H-2B visa, the employer is required to “test” the local U.S. labor market by advertising the position and interviewing applicants to ensure there is no U.S. worker ready, willing, and able to perform the duties of the job. Further, H-2Bs require a specific temporary need, such as a seasonal need or a one-time occurrence that must be clearly defined. For an industry that is always struggling to obtain workers, the H-2B visa may present an opportunity to tap into a foreign workforce.
Path to Citizenship
For most individuals, in order to become U.S. citizen, they first must become a lawful permanent resident (green card holder). There are several pathways for one to become a lawful permanent resident, including options for those who are undocumented. For instance, individuals may be able to obtain lawful permanent residence through immediate family members who are U.S. citizens or lawful permanent residents. More importantly, employers have the ability to sponsor their workers. However, under the current administration’s BAHA policies, the review of lawful permanent resident petitions are conducted with increased scrutiny and with a strict interpretation of the rules and regulations, which unsurprisingly has slowed the process significantly, with some petitions taking several years to process.
At the end of the day, understanding the current immigration climate can help roofers navigate the U.S. immigration system in a way that could potentially become a competitive advantage as opposed to a disadvantage.
Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.