When Congress failed to reshape federal immigration policy earlier this summer, building service contractors across the country could only shake their heads and wonder, “Now what?” BSCs had hoped that a new law would clarify and streamline their responsibilities to verify the work status of employees. Instead, in late June the U.S. Senate effectively suspended consideration of any change by stalling debate on a bill that would have created wholesale changes to immigration law.

“The Senate didn’t vote on final passage, but technically they haven’t killed the bill,” explains H. Robert Sakaniwa, associate director of business immigration advocacy for the American Immigration Lawyers Association. That said, neither Sakaniwa nor any other observer expects major immigration-reform legislation to be revived for at least 18 months, i.e., until after the 44th president and the 111th Congress are sworn in, in January of 2009.

“We’re back to square one, back to the law as it has existed,” says Bill Balek, who followed the course of reform efforts intently as the director of legislative affairs for ISSA.

And yet the absence of a changed policy doesn’t necessarily mean that the status quo will continue until then, especially with regard to employer verification responsibilities. One reason is that there are some questions about what, exactly, the status quo is. In addition, the push to reform overall immigration policy has gained enough momentum that experts predict changes could still roll in, piecemeal, for the foreseeable future.

“There are some issues that remain,” Balek says. “Congress may look at smaller issues and is likely to take a patchwork approach to resolving some of the problems that exist, such as securing the borders. And there is still the issue of enforcement because the Department of Homeland Security has basically said as much — that they will continue to enforce the immigration laws as they apply to employers.”

Identification, please
The level of such enforcement is of paramount concern to BSCs. Not only are their businesses based on labor, but their industry has always served as an employment point-of-entry for immigrant workers — of the 2.1 million-plus people working for building and maintenance employers across the country last year, at least a third were classified as non-native by the federal Department of Labor. This puts owners and managers of building services companies on the front line when it comes to verifying employment eligibility.

Raising the stakes even higher is the fact that, according to a 2004 report by The Urban Institute, two out of every five immigrants who are employed in the United States are not actually authorized to work here; they don’t have documents, as required by law, which truthfully attest to their employment eligibility.

These numbers don’t surprise Steve Hendrickson, but they have long concerned him. As president and CEO of Porter Industries, a commercial and residential cleaning company based in Loveland, Colo., Hendrickson has extensive experience in making sure his company’s workers are legally eligible for employment.

“We’ve basically become experts at document identification, as best we can, over the last 15 to 20 years,” he says. “We know a fraudulent document when we see one, but we’ll also see on that same application that the person has already worked for a number of our competitors. It’s frustrating.”

The reasons employees don’t provide BSCs with proper documentation can vary — some people don’t have valid employment-eligibility identification because they entered the country illegally, for example, while others came here legally with visas that have since expired — but the result is always the same: they are in violation of federal law, and can face serious penalties.

More importantly to BSCs, though, workers who can’t prove their employment eligibility can in turn put owners, managers and the existence of the entire company in jeopardy. The Immigration Reform and Control Act of 1986 — which is the law that governs hiring of immigrants unless and until a new law supplants it — contains substantial penalties for businesses that employ undocumented workers. In other words, employing “illegal” workers is itself an illegal act under federal law.

How do BSCs risk running afoul of the law?

“In our business finding properly documented workers is a tough job,” explains Hendrickson. “You do have to pay documented workers more and take care of them with the benefits you can provide, because they can go anywhere else.”

On the other hand, companies that, as Hendrickson says, “wink at the law” and neglect to examine employee documents closely, gain an advantage over their competitors.

“They’re the ones who are going to have undocumented workers who will be much more likely to stay,” he says.

In the past year, though, the federal government has ramped up its scrutiny of hiring practices, including those in the cleaning industry.

“It was basically the position of even [federal authorities] for quite a while that all you have to do is say that you reasonably believe that these are good documents,” says Hendrickson.

Not anymore. Whereas investigations once focused on discovering and deporting unauthorized workers, recent arrests and prosecutions of the BSCs themselves have made it clear that while overall immigration reform may have stalled, the enforcement of employment law is very much on the front burner.

“I think the message we will continue to reiterate is that no company, regardless of size or type, is immune to enforcement of this law,” says Marc Raimondi, a spokesperson for the U.S. Immigration and Customs Enforcement (ICE) agency. “We have a very strong track record of holding those who violate the law accountable.”

Indeed, more than 700 owners and managers in various industries faced criminal charges for employing undocumented workers last year, according to an article by Spencer S. Hsu in the Washington Post. Major developments this year, according to that same report, include a 23-count federal indictment against the co-owners and controller of a national janitorial service. And in March, it was reported by Randy McConnell of the Columbia Business Times that nine building services contracts were cancelled by the state of Missouri, which also banned the cleaning company that had held the contracts from doing business with the state in the future.

Do the right thing
Adding to the supply-and-demand challenges of hiring properly documented employees is the murkiness that observers say surrounds proper procedures and federal policy in this new context of heightened enforcement.

“Employers are caught in a Catch-22 situation because even if they comply with the law as it’s currently stated, they could still be in a situation where the information they gathered is not accurate,” observes Sakaniwa. “They’re caught between needing all these employees and trying to follow the procedures, and they’ve got 20 or more forms of identification that could be considered.”

Raimondi sympathizes — “We know most employers want to do the right thing,” he says — and offers as assistance a relatively new federal resource called the Basic Pilot Employment Verification Program. Part of a larger training and education initiative on verification best practices called IMAGE (for ICE Mutual Agreement between Government and Employers), the pilot program is free and online. Once signed up, employers undergo an ICE audit of their I-9 forms. They can also use the internet to search federal databases for information on new hires; they can check to see, for instance, whether the name of the employee matches the Social Security number on the card offered as verification of employment eligibility.

Critics say the program is a step or two in the right direction but needs to be improved.

“One problem is that the government databases, whether they be at the Social Security Administration or U.S. Citizenship And Immigration Services, are just terribly either not up to date or inaccurate,” notes Sakinawa. “It makes this current employer verification system untrustworthy in terms of its accuracy.”

Another problem is that employers run one risk by hiring an undocumented employee, but they run another by firing them.

“Here’s the dilemma,” says Balek, “employers can be prosecuted under federal statutes for knowingly employing unauthorized individuals. On the other hand, if they fire them based on the simple fact that they received a ‘no-match’ letter, they may face a civil lawsuit based on discrimination.”

The pilot program began last summer and has already enrolled nearly 15,000 employers. BSCs who have used it report that the databases can indeed match a name to a Social Security number, but can’t help a BSC determine whether the same name and number are being used at multiple places of employment. And those situations, which typically involve identity fraud or identity theft, are harder for a BSC to spot.

Still, the best defense is a good offense, says Balek. While ISSA has not officially endorsed either IMAGE or the pilot program, he agrees that both can play a role in helping BSCs stay in compliance with the law. They offer education and training, he notes, and provide information on how an employer can go beyond merely checking I-9 forms for employees.

“These programs help to ensure that employers do not knowingly hire unauthorized employees, and therefore avoid enforcement actions,” he explains.

In addition, Raimondi advises BSCs who wish to police their industry to notify ICE of illegal employment.
“Unfounded allegations are not as easy to follow up on as cases where someone has witnessed the time, date and place [of an illegal hire],” he says, “but employers can report allegations to their local ICE office or on our Web site.”

Experts agree that a little preparation can go a long way when it comes to responding to any type of inquiry. In addition, experts encourage BSCs to have a proactive mindset and keep accurate records to help stay in compliance with the current immigration-employment law.

Due Diligence

In a legislative and regulatory update written earlier this year, Bill Balek, director of legislative affairs for ISSA, stressed the need for employers to have processes and documentation in place. His advice:

  1. Audit your I-9 forms before the U.S. Immigration and Customs Enforcement (ICE) agency does. Make sure that Section 1 of the I-9 form is completed by each employee on his or her first day of work, that Section 2 is completed within three days of hiring, and that Section 3 is completed if necessary. Make sure that I-9 forms are kept on file for all current employees; I-9s for former employees should also be kept for a period of three years from the date of hire or one year after the date employment ends, but no longer. Also, I-9s should be kept separate from other personnel files. And finally, review a random sampling of I-9 forms on a regular basis.
  2. Develop procedures to respond in case you receive notification from ICE that your employees documentation doesn’t match government records.
  3. Maintain a corporate immigration policy that clearly states your company’s policy on hiring and work authorization.

Online Resources

Employment Verification Pilot Programs

U.S. Immigration and Customs Enforcement

U.S. Department of Homeland Security

U.S. Citizenship and Immigration Services

Employment Eligibility Verification (The I-9 form PDF)

Building Service Contractors Association International Government Affairs Committee

ISSA Knowledge Center

Mary Erpenbach is a freelance writer based in Rockford, Ill. She is a frequent contributor to Contracting Profits.