A heightened federal focus on undocumented immigrants is resulting in increased penalties for contractors who employ them. We spoke with immigration lawyer Raymond Lahoud, Chair of the Immigration Law Practice at Norris McLaughlin in New York City, who cited a report from the National Association of Home Builders that immigrants account for 30% of workers in the construction workforce. The highest percentage is among plasterers/stucco masons, drywall installers and painters. Lahoud represents businesses of all sizes in all corporate immigration and employer immigration compliance matters.
“For paint contractors, as with all businesses, the consequences are significant, from civil penalties to criminal prosecution and full-scale worksite raids,” said Lahoud. “Given the predominance of immigrant workers in the construction industry, the Department of Homeland Security has set its eyes on construction companies and contractors of all sizes in all states.”
This can put many contractors in a difficult situation, especially if they’ve been employing an undocumented worker for many years. “They are referred to as ‘family’ and employers do not want to part ways,” said Lahoud. “However, the employment of undocumented immigrants is no longer a culture that is ‘accepted’ by federal immigration officials. As a result, compliance, regardless of cost or replacement recruitment efforts, is absolutely necessary. The alternative that presents itself is DHS conducting a worksite inspection. Such action could very well cause an exodus of all employees. Without competent and trained replacements, that could lead to a halt to company operations followed by significant loss of revenues, contracts and clients. In addition, the risk is real to incur significant legal fees, civil penalties, and, in certain circumstances, criminal prosecution.”
Lahoud notes that the number of worksite investigations and Form I-9 audits that the Department of Homeland Security initiated in the 2018 fiscal year increased by 400% when compared to the 2017 fiscal year. DHS made 779 criminal and 1,525 administrative worksite-related arrests in the 2018 fiscal year, compared to 139 and 172, respectively, in FY 2017.
If you’ve received information that you may have an undocumented worker, depending on the source, you may need to look into it. A “snitch” from a disgruntled co-worker, for example, is not grounds to launch an inquiry. “When an employee walks into their manager’s office and asks for ‘immigration sponsorship,’ or declares that they are actually undocumented, the employer must conduct a review to determine whether the employee is lawfully authorized to work in the United States,” said Lahoud. “Whether a review is necessary depends on how the employer learned the information. Nonetheless, if the result is that an employee is not lawfully authorized to work in the United States, any action short of termination would lead to a finding of knowingly employing an unauthorized individual—the very allegation that would form the core of criminal prosecution in a federal employer immigration compliance case.”
Federal immigration compliance agents are now instructed to investigate the culture of a business that hired significant numbers of undocumented individuals. They’ll be asking questions as to what management knew and when. “These questions lead to internal investigations, substantial legal fees, public scrutiny, and years of litigation culminating in a referral to the United States Attorney for criminal prosecution,” said Lahoud.