United States

New immigration enforcement strategy is here

INSIGHT ARTICLE  | 

During his presidential campaign, candidate Donald Trump communicated his position on undocumented workers and his strategies. In interviews with both “60 Minutes” and NBC, Trump stated he would deport undocumented immigrants. On Feb. 20, 2017, Department of Homeland Security Secretary John Kelly released a memo titled, “Enforcement of the Immigration Laws to Serve the National Interest” that held true to the president’s position. In the memo addressed to leadership of U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE), among others, President Trump’s enforcement priorities were laid out.  

One of the president’s priorities is a directive to ICE to hire 10,000 officers and agents. The agency directs the removal of undocumented immigrants and states its priority to remove those who have:

  • Been convicted of criminal offenses
  • Been charged with criminal offenses (even if not resolved) 
  • Committed acts that could be considered chargeable criminal offenses
  • Engaged in fraud or willful misrepresentation in connection with any official matter before a government agency
  • Abused any program related to receipt of public benefits
  • Been issued a final order of removal but not departed the United States
  • Pose a risk to public safety or national security per the judgment of an immigration officer  

The memo also provides for the full authority of the Department of Homeland Security (DHS) personnel to arrest or apprehend people when there is probable cause to believe they are in violation of immigration laws. ICE is directed to reallocate and redirect resources that were allocated to outreach or advocacy for service to those who have entered the U.S. without legal permission to the newly created Victims of Immigration Crime Engagement office.

Enforcement in Texas

Of particular interest for Texas is the Immigration and Nationality Act, section 287(g) that allows state or local law enforcement personnel to be designated as immigration officers, thus giving them the authority to perform all law enforcement functions, including investigations, identification, apprehension, arrests and detention. Texas Governor Greg Abbott has deemed immigration legislation a priority for the 2017 Texas session. Proposed legislation would outlaw so-called sanctuary cities, potentially withholding state funding for counties, cities and colleges that would fail to comply. If the anti-sanctuary city bill passes and is signed into law in Texas, state, county and local law enforcement would be required to comply or face charges.

The memo also directs ICE, CBP and U.S. Citizenship and Immigration Services to issue guidance and disseminate regulations to ensure the assessment and collection of fines and penalties from those immigrants here illegally and from “those who facilitate their unlawful presence in the United States,” a directive that appears to be intended for employers who continue to knowingly employ undocumented workers.

The strategy of the Obama administration was enforcement action that would deter employers from employing undocumented workers. Enforcement was in the form of I-9 audits where violations resulted in penalties to employers, but not direct action against the undocumented worker. While President Trump has communicated expedited deportation as a strategy, at this point employers can only presume that the addition of ICE employees would mean continued I-9 audits and the risk of immediate detention and/or deportation of undocumented workers who are discovered.

While it is too early to know how the immigrant workforce will react when made aware of increasing I-9 employer audits, images from the 1980s of immigrant workers fleeing jobsites may not seem unreasonable.

The numbers are substantial

Analysis released in November 2016 by the National Bureau of Economic Research (NBER) estimated that 1.1 million undocumented immigrants work in the construction industry (a number equal to the population of Dallas). Construction is second only to leisure and hospitality, with an estimated 1.3 million undocumented immigrants.

An analysis by NBER also forecasted an 8 percent long-term decline in construction’s gross domestic product if all undocumented workers were immediately deported, with a drop of 5 percent in the short term. Coupled with the construction industry’s ongoing challenge to recruit skilled workers, such a decline could be catastrophic. The report goes on to note that legalization of undocumented construction workers could result in a long-term rise of 1.9 percent, or $12.1 billion annually.

Compliance strategy

Absent significant immigration reform and in light of increasing enforcement, construction companies may face additional labor shortages. As the number of penalties for violating immigration regulations continues to grow, knowingly employing undocumented workers continues to be a huge risk. Construction companies must be committed to employing an immigration-compliant workforce.

One strategy has been the use of the H-2B visa program that allowed U.S. employers to hire foreign workers for temporary non-agricultural jobs. The H-2B program had a number of restrictions and obligations, the most challenging of which states that work must be temporary for either a one-time occurrence, seasonal need, peak load need or intermittent need. H-2Bs had been granted for limited periods of time that lasted no longer than three years. On Sept. 30, 2016, however, the H2-B returning worker program expired and, as Congress has not reauthorized the program, employers will not be able to identify returning workers for the 2017 fiscal year.

A second strategy is to focus on I-9 compliance. As employers are well aware, I-9 forms must be completed for all new employees within three days of employment. Employees are required to attest their citizenship/immigration status and provide documentation that establishes their identify and eligibility to work and employers are required to view the original documents provided and list  them on the I-9 form by signature and under the penalty of perjury. Employers who fail to complete I-9 forms accurately and on a timely basis are subject to penalties. However, this process does not always ensure an immigration-compliant workforce, as fraudulent documents can be offered by workers.

E-Verify is the third strategy. E-Verify is the federal-government-sponsored, internet-based system that businesses can use to determine the eligibility of employees to work in the United States. Information provided on the I-9 form is used to enter cases into the E-Verify system, within three days of employment, as with the I-9 forms. Federal contractors are required to use E-Verify for employees working under federal contracts.

Additional considerations

As the regulatory approach towards illegal immigration under the Trump administration unfolds, construction companies should take steps to audit their hiring practices, not only to ensure compliance with I-9 regulations, but to also ensure that criminal activity isn’t taking place at all levels of the organization. In press releases, ICE has detailed situations where hiring managers have circumvented a company’s hiring policies and procedures in an effort to staff undocumented immigrants, unbeknownst to management.

Employers find themselves in a challenging position: a strong economy, with the expectation of healthy backlogs, and yet difficulty finding people to do the work. But a long-term view of compliance with immigration policies should outweigh any short-term solutions for hiring. 

Published In: July 2017 Texas Contractor.

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