In search of employees

• Photo courtesy of Pacific Tech Construction, Longview, Wash.

Although the newly elected Congress undoubtedly will address the immigration issue in 2007, it will take time for any new law to be passed. In the meantime, roofing contractors and other U.S. industries are left in a quandary.

The roofing industry, similar to other segments of the U.S. economy, needs personnel and has had great difficulty attracting authorized workers to meet its needs.

After many years of little effort by the federal government to crack down on the pervasive use of fraudulent worker authorization documents, the Immigration and Customs Enforcement (ICE) arm of the U.S. Department of Homeland Security (DHS) has engaged in a well-publicized campaign of job-site raids, immediate deportation of unauthorized workers and the threat of bringing criminal charges against employers of illegal immigrants. In addition, in the absence of federal legislation, state legislatures and local governments have enacted laws intended to penalize employers of unauthorized workers.

Although relatively few employers have been subject to raids, the threat of a raid has left many contractors worried they might suddenly lose a substantial portion of their work forces with no advance notice.

Until and unless there are changes in federal law that provide for some type of guest worker program, what are contractors to do?

Ensure compliance

Since 1986, it has been unlawful for employers to employ or continue to employ workers known to be illegal immigrants. Employer knowledge can be actual knowledge or constructive knowledge, meaning an employer has information indicating an employee is unauthorized to work in the U.S. and fails to take any action to ascertain the employee's legal status.

According to the Immigration Reform Control Act of 1986, employers are required to determine whether an individual is authorized to work in the U.S. by completing I-9 forms for every employee hired after November 1986.

As an employer, you are to examine prescribed documents demonstrating an employee's identity and eligibility to work in the U.S. Given ICE's current campaign of raiding job sites and homes of suspected illegal immigrants, check to make sure you have proper, current and complete I-9 forms for all employees. In addition, consider having an I-9 audit conducted to make sure all your documentation is correct and current. This can save you from being surprised by an ICE I-9 audit.

Also, be sure all personnel in your company who hire new employees are well-trained in the I-9 process. Remember, the person who hires a new employee must review the documents presented and sign the I-9 certification. If hiring is done by several people, have one individual review all I-9 forms to ensure they have been completed properly.

Although not required by current law, making and keeping copies of the documents that have been presented should demonstrate you were complying with the law and relied on documents that appeared to be genuine in the event an employee's legal status or document's authenticity is challenged.

Discrepancy in documents

If you receive information from a government agency indicating there is a problem with a document submitted by an employee, follow up in a manner that is reasonable under the current circumstances.

For instance, if you receive a "mismatch" letter from the Social Security Administration (SSA), review your records, notify the affected employee about the discrepancy, make whatever revisions are needed to correct clerical discrepancies and seek to resolve the discrepancy with SSA. DHS has proposed a new federal regulation that, if adopted, would require employers either to terminate employees if discrepancies are not resolved within 60 days or redo the I-9 process without relying on the document that was the subject of the discrepancy and use a document that includes a photograph.

Consider Basic Pilot

To develop a work force that would not be subject to challenge, you may choose to participate in the federal electronic employment eligibility program known as Basic Pilot (for more information about Basic Pilot, see "The right side of the law," June issue, page 58). This program currently is voluntary but has been written into otherwise conflicting proposed federal legislation passed by the House of Representatives, Senate and state legislation.

Basic Pilot is an Internet-based program that compares information included on I-9 forms with information contained in federal databases. Employers who participate in the program submit Social Security numbers and work authorization information to SSA and DHS whenever a new employee is hired. SSA and DHS then will inform the employer electronically within three days whether an employee is eligible to work. If the discrepancy is not resolved within 10 days, the employee should be terminated to avoid potential liability based on constructive knowledge.

Basic Pilot currently applies only to new employees. You can submit names and Social Security numbers to SSA for verification without participating in the Basic Pilot program.

H-2B visas

If you are unable to find U.S. workers to meet peak or unusual manpower needs, you may want to consider obtaining H-2B work visas to employ foreign workers temporarily. H-2B visas are issued to U.S. employers by the U.S. Citizenship and Immigration Services (USCIS), a division of DHS, after an employer obtains temporary labor certification from the Employment and Training Administration of the U.S. Department of Labor (DOL).

Up to 66,000 foreign workers can enter the U.S. each year on H-2B visas. So that all 66,000 H-2B visas are not used at the beginning of the year, 33,000 H-2B visas are available during the first six months of the federal government's fiscal year, which starts Oct. 1, and 33,000 additional H-2B visas are available for the second six months of the government's fiscal year. In past years, about 100,000 H-2B petitions have been approved to account for the number of unused visas.

Established by Congress in 1990, H-2B visas can be issued to skilled or unskilled workers. The H-2B visa category ideally is suited for and customarily has been used by industries that have a high demand for seasonal workers, such as the hospitality industry at ski resorts and summer vacation properties. However, the construction industry also has been a high consumer of H-2B visas and several roofing contractors have obtained and benefited from employing foreign workers with H-2B visas to augment their work forces to meet special needs.

H-2B visas cannot be obtained to expand a permanent typical work force. To obtain an H-2B visa, you must show you have a temporary need for additional employees and no qualified U.S. workers are willing and available to take the job.

There are four circumstances that meet the temporary-need criteria:

• One-time occurrence: A temporary event of short duration has created the need for a temporary worker.
• Recurring seasonal need: The need for services or labor is tied to a season by an event or pattern and is recurring.
• Peak-load need: You need to supplement your permanent work force because of a short-term demand.
• Intermittent/occasional job: You occasionally or intermittently need temporary workers to perform services for short periods.

H-2B visas are issued for a maximum period of one year and are for jobs that last less than one year—usually no more than 10 months—with reasonably firm start and finish dates. An H-2B visa can be renewed twice in one-year increments. If you desire to obtain workers with H-2B visas, initiate the process at least 60 days but no more than 120 days before a worker is needed. The complete process usually takes four months to six months.

To hire a worker with an H-2B visa, you must obtain certification from DOL's Employment and Training Administration that states qualified people in the U.S. are not available and the proposed employment terms will not adversely affect the wages and working conditions of similarly employed workers in the U.S. Your attempts to recruit U.S. workers and appropriateness of the offered wages and working conditions are considered.

The first step to obtain the necessary certification is to file an Application for Alien Employment Certification (Form ETA 750), describing the job to be performed, job requirements, efforts that have been made to recruit U.S. workers, number of openings and a statement explaining why the job opportunity is temporary.

The application is filed with the state labor and employment agency where the job will be located. A list of state agencies is listed at https://workforcesecurity.doleta.gov/foreign/contacts.asp. One application is sufficient for multiple workers. There is no limit to the number of H-2B workers you may hire.

While an application is pending, you must advertise the position for three consecutive days in a local newspaper and the state agency will post the job, using the same job description included in the application. After the three-day period, the state agency will forward the application and its recommendation to the regional office of the Employment and Training Administration. Upon receipt of the application and state agency's recommendation, the regional office will issue or deny the temporary labor certification. If the application is approved, the certification is issued. The labor certification is not transferable from one employer to another or from one worker to another.

Once the certification is issued, you must submit a Petition for a Nonimmigrant Worker, USCIS Form I-129, with the DOL certification to the district director of USCIS and identify the workers to whom you want H-2B work visas issued. The USCIS review process usually takes four weeks to six weeks, but for an additional $1,000 for premium processing service, the servicing center will process a petition within 15 calendar days. Upon approval by USCIS, a visa stamp is placed into the foreign worker's passport at the U.S. consulate in the worker's country. The foreign worker then can enter the U.S. to perform the job. The H-2B visa holder's spouse and children under 21 may enter and stay in the U.S. for the authorized duration of the H-2B visa and are issued H-4 visas.

The H-2B program is not ideally suited to meet the labor needs of construction contractors but can help add labor capacity if you have a greater need for personnel during certain months, a particularly large job or several upcoming jobs for which additional labor beyond your typical work force is needed. If the same need arises the following year, the H-2B visa can be renewed but the worker first must return to his home country before the initial H-2B visa expires and then return to the U.S.

Returning foreign workers are not subject to the 66,000 cap. An illegal immigrant working in the U.S. is not eligible for an H-2B visa.

Steps to take

To reduce potential liability for an immigration law violation and foster a legal work force, you should:

• Be certain not to hire or continue to employ an employee who you know is unauthorized to work in the U.S.
• Comply fully and in good faith with the I-9 process
• Arrange to conduct an I-9 audit to be certain you have properly and fully completed I-9 forms for each employee and have not—knowingly or unknowingly—continued to rely on expired work authorization documents
• Check whether the state in which you do business has enacted immigration legislation
• Take reasonable follow-up steps if you receive information indicating there may be a problem with work authorization documents presented by an employee
• Consider participating in the federal Basic Pilot program to verify electronically employment eligibility of new employees
• Consider applying for H-2B worker visas to employ foreign workers to supplement your existing work force.

Stephen M. Phillips is a partner with the law firm Hendrick, Phillips, Salzman & Flatt, Atlanta.