5 Keys to Legally Employ Immigrant Workers

7/20/2021

By Trent Cotney, Cotney Construction Law


According to recent statistics, more than 1.5 million immigrants are currently working in the U.S. construction industry. They labor as carpenters and pool and spa installers, painters and drywall installers, helping create and maintain roads, bridges, commercial and government buildings, residential housing and other facilities throughout the United States.The industry has come to rely on these skilled workers who have relocated to this nation from various countries.

However, to employ them legally, it is essential to understand the related issues and challenges.

I-9 Immigration Compliance

In 2017, the Trump administration issued a Buy American and Hire American executive order.

While this action did not create new laws, it called for enforcement of old ones. The executive order was likely intended to encourage consumers and employers to support American products and workers, but in some regards, it had a negative impact on the construction industry. 

The skilled labor shortage is very real, and companies need immigrants to ensure projects are successful. The following categories of individuals are allowed to work in the United States:

  • U.S. citizens (born in the United States, naturalized or derived)
  • Noncitizen nationals       
  • Lawful permanent residents
  • Noncitizens with work authorizations

When hiring workers, it is critical to ensure that you comply with all I-9 regulations. Form I-9 is used to verify that individuals are authorized to work in the United States. In addition to completing the form, workers must present specific documents that prove their identity and eligibility.

Using E-Verify

After workers complete Form I-9,  employers can benefit from using E-Verify, a web-based system that enables them to electronically match the information provided on Form I-9 with records available from the Department of Homeland Security and the Social Security Administration. Although E-Verify is voluntary for many employers, it is required for those with federal contracts.E-Verify is an efficient tool, but it can reveal employees who are not legally eligible to work. Remember that E-Verify has no bearing on an I-9 audit and whether the forms were filled out correctly.

ICE Inspections

Many states have experienced crackdowns from U.S. Customs and Immigration Enforcement (ICE). This agency is tasked with identifying, detaining and removing illegal noncitizens from the country. Sometimes the agency’s tactics can be dramatic and include workplace inspections and raids. For inspections, employers will receive advance notice but have only three days to produce 1-9 records. ICE agents will review those records for all current and terminated employees. In contrast, ICE raids are unannounced and can be initiated without warrants to search public areas. However, agents will need to produce judicial search warrants to search non-public areas.

H-2B Visas

Another avenue of employment is the H-2B program, which allows employers to hire non-immigrants on a temporary basis. A limited number of H-2B visas are issued each year, with specific wage requirements. To use the H-2B program, you must prove your need for temporary labor and the insufficient number of U.S. workers to fill that need. You must also prove that your hiring these workers will not adversely affect the wages or working conditions of U.S. employees in similar roles.

Laws in Flux

Presently, lawmakers are discussing various immigration reform bills. They will likely review and possibly revise the path to citizenship options for immigrant workers. As an employer, be sure you understand the details of temporary visas and how to sponsor workers. Knowing the legalities surrounding immigration will help you build a skilled and capable crew while ensuring your company is ready for any project. 

Disclaimer: 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. 

Trent Cotney is CEO of Cotney Construction Law and is an advocate for the construciton industry. For more information, contact the author at 866.303.5868 or go to www.cotneycl.com.