The Immigration Puzzle

The sound and fury surrounding the illegal immigration/undocumented-worker debate understandably is making some remodelers nervous. With the specter of the Department of Homeland Security (DHS) and ICE, DHS’s somewhat ominously named investigative branch (it stands for Immigration and Customs Enforcement) peering into their hiring practices, who can blame them?

To add to the apprehension, several states, impatient with federal inaction, have passed tough laws that could revoke business licenses or even make immigration-related hiring infractions a felony.

The mix of federal agencies involved — some of which have undergone name changes under the DHS umbrella — can be frustrating and intimidating to the uninitiated.

The good news is that remodelers who have consistently followed the rules and kept up to date with federal and state requirements don’t necessarily see the issue as overwhelming.

“If you have systems in place and do background checks on everyone that you hire, it’s not really an issue. It’s more of an issue for people who aren’t doing background checks as a normal part of their hiring process,” says Chris Lattuada of B-Line Construction Inc. in Sacramento.

Lattuada says his firm routinely fills out I-9 employment eligibility verification forms for all hires and has a third-party agency do a background check.

Another California remodeler, Philip Anderson, president of HDR Remodeling in Berkeley, says, while there is a significant Hispanic presence in the workforce in his area, the immigration issue doesn’t show up as something that he sees as a pressing problem. He says the consensus of contractors in his area is that they have “gotten off easy” so far in that regard and have not experienced significant problems.

Anderson does, however, verify the employment eligibility of his hires as a matter of routine procedure. He adds that he is not having difficulty maintaining his workforce because of immigration issues.

One small New Jersey remodeler, who asked that his name not be used, reports several Social Security no-match issues, at least one of which resulted in the termination of the employee. An earlier no-match situation became moot when the crew was terminated for business reasons unrelated to their work eligibility. The remodeler notes that no action was taken against him as an employer in either case.

While tales of extreme compliance or enforcement dilemmas seem rare, remodelers would do well to keep informed of current requirements as well as of stricter sanctions that may impend.

No-Match Letters

Social Security Administration (SSA) no-match letters — which many remodelers have never seen because SSA only sends letters to firms with 10 or more instances in which Social Security numbers on W-2 forms do not match SSA’s records — is one issue that bears watching. Even though only 9 percent of those responding to a Qualified Remodeler survey report receiving such notifications, use of the letters as an enforcement tool may become more widespread.

The no-match letters themselves are nothing new. What is new is a ruling by DHS that receipt of such a letter constitutes “constructive knowledge” that an employee is unauthorized to work in the United States. The Social Security Administration for years has included a disclaimer that its no-match letter made no statement about the immigration status of the employee named.

The DHS rule, “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter,” was promptly challenged in court by the AFL-CIO and other labor and immigrant rights organizations in August 2007. The court issued an injunction in the case, but the DHS issued a supplemental proposed rule, little changed from the initial rule, which may go into effect soon unless similarly challenged.