Sponsored by Husqvarna
WORKING WITH INS
FACT: The Hispanic population within the United States is currently estimated at 10 to 11 percent of the total population and is expected to soon double.
FACT: Current estimates place the number of illegal immigrants living within the United States between 4 and 7 million.
FACT: Only 171,154 illegal immigrants were removed from the United States in 1998.
FACT: The national unemployment level in the United States was 6.9 percent for 1993 and 4.2 percent in mid-1999.
Landscape contractors have a problem, and it promises to get worse.
Business is good, but contractors can’t find people to do the work. Wages have increased in recent years, but not dramatically as contractors’ attempts to raise prices are regularly rebuffed by the marketplace. Contractors nationwide complain about unwillingness on the part of most American citizens to perform landscape construction or maintenance work for the wages the contractors are able to pay.
As a result, contractors have embraced the ever-growing Hispanic population that not only diligently and capably performs the necessary fieldwork but also becomes frustrated when they can’t work at more than 40 hours.
| Checking the Card |
A bad green card is still good enough to get hired, and illegal immigrants know this. In fact, battling green card counterfeiters constantly challenges the U.S. Department of Immigration and Naturalization Services and forces the government agency to periodically redesign the card and incorporate new security features. Pat Walters, director of investigations for the INS in Charlotte, N.C., offered contractors some helpful hints for examining the validity of a green card presented by a potential employee: |
The problem contractors then run into is the fact that many Hispanic employees are in the United States as illegal immigrants, a constant focus of the U.S. Immigration & Naturalization Services operations. As INS officers work to remove illegal immigrants from the country and the federal government limits the number of immigrants allowed to obtain the necessary documents to secure employment in the U.S., contractors see what may be their last hope to continue growing their businesses disappearing without any replacement options.
Attendees at the third annual Landscape Contractor Roundtable, sponsored by Husqvarna Forest & Garden Co., Charlotte, N.C., and Lawn & Landscape magazine were greeted with sobering information from Pat Walters, director of investigations for the INS office in Charlotte.
"The INS is not the avenue by which your problems will be solved," affirmed Walters. "The fact of the matter is that a lot of times you hire people that you think are legal - they may even think they are legal - and then the INS comes along and you lose those employees.
"We understand that with unemployment so low there isn’t a sufficient employee pool for employers to draw labor from," Walters recognized. "And, as long as the disparity in the standard of living exists between the United States and Mexico, people are going to come here to work, and no one can blame them for that. But, you have to understand that from my perspective, that’s oftentimes a violation of the law. That’s simply the nature of the beast we’re dealing with."
| When the INS Calls |
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The idea of having the U.S. Department of Immigration and Naturalization Services show up at the office first thing Monday morning is probably enough to ruin more than a few nights of sleep for many contractors. Pat Walters, director of investigations for the INS in Charlotte, N.C., explained that the INS typically gives employers three days advance notice before coming out and conducting an inspection. "We try to schedule the appointment on a good day for the employer, and we’ll usually send one agent out to do the inspection," Walters expected. "The employer has to have all employees’ I-9 forms there, although how they’re organized or filed doesn’t matter." Walters said the INS will verify that I-9 forms are present for all employees by checking the forms against an employee payroll list or getting a copy of the company’s unemployment insurance tax report that is filed with the state. He also pointed out that a company could be fined for improperly filling out the I-9 forms even if all of its employees were natural born U.S. citizens. "The agent may not even look at all of the I-9 forms if there are too many employees, but that is rare," Walters noted. "The agent will check the part of the I-9 form where a box is checked signifying the employee as either a U.S. citizen or an alien. One of those boxes has to be checked, and then the agent will examine the form to make sure the employer physically inspected the document provided by the employee to verify his or her status as a citizen or alien, which is indicated by the presence of the employer’s signature. "Also, the agent will check the date on the I-9 form to make sure the form was filled out within three days of the employee’s start date," Walters added. Finally, the agent will make a list of some or all of the employees’ names and the social security number or alien number from the I-9 form and run this against the government’s files to make sure the correct person is listed on each I-9 form, according to Walters. "If the inspection finds the company only employs legal aliens, then we’ll send a letter letting the company know this," commented Walters. "Sometimes we’ll have to send a letter telling the employer to either re-verify the status of certain employees or immediately terminate some employees. The worst case scenario is that we show up with a warrant and take the illegal workers." Walters emphasized, however, that while the INS does not have the goal of putting companies out of business, companies that don’t cooperate with the investigation might only make things worse on themselves. "The law gives the INS the right to inspect I-9 forms without a subpoena, so companies should cooperate with us," Walters noted. "If companies are uncooperative with us then we will get a warrant and take as many of their employees as possible at the worst possible time for that company. "I can’t overemphasize that the proper completion of the I-9 forms is the best way for an employer to protect itself, even though this won’t necessarily protect a company from losing any employees," Walters stressed. |
BY THE BOOK. The legal responsibilities of companies that hire immigrant employees are fairly simple and straightforward. Since 1986, the federal government has required that companies fill out an I-9 form for any employee they hire - immigrant or not. (I-9 forms aren’t required for employees hired before 1986, but companies are required to keep I-9 forms on file for three years after an employee’s employment ends.)
The I-9 form indicates that the employer has requested the appropriate documents from the new employee to verify that the employee is a legal resident of the United States. In the case of an immigrant, this document is generally a green card, which is officially known as an alien registration receipt card. The green card itself is a convenient substitute for the actual work visa, which is more cumbersome to carry around. Once the employee has filled out a portion of the I-9 and has shown the employer the appropriate documents then the employer signs the form and the employee is hired.
This system is hardly foolproof, however, because employers generally have no way of verifying the authenticity of the document given to them by the prospective employee.
"The best defense against fines is preparing the I-9 forms correctly because employers are not expected to know the difference between counterfeit and good cards," related Walters. "That’s why employers who complete the I-9 forms for illegal employees will lose the employees if they are inspected by the INS but the company won’t be fined. To be fined, INS has to conclude that the employer knowingly hired illegal employees."
A MISSING LINK. What frustrates contractors the most, however, is that the INS doesn’t make its verifications services available to employers before they hire an employee so the problem of hiring illegal immigrants can be avoided. After all, if contractors aren’t expected to know how to screen authentic documents from forged documents, isn’t the government essentially ensuring that illegal immigrants will be unknowingly hired, investigated and deported?
"The missing link here is that employers cannot go to the INS to get any background information before we hire someone even though the INS can do this internally," lamented Steve Hoogenakker, president, Showcase Landscape, Minneapolis, Minn.
"The system is actually set up for us as employers to be raided because we can only go so far in our due diligence of verification," agreed David Snodgrass, president, Dennis’ 7 Dees Landscaping, Portland, Ore.
"Yes, it would be better for everybody if the INS could verify employees’ eligibility for work before they are hired, but the INS is precluded from doing this by privacy laws," noted Walters, adding that the INS employs eight agents to manage this issue for the entire state of North Carolina. "We also don’t have the time or the personnel to do this for every immigrant that applies for a job."
LEGISLATIVE UPDATE
A tremendous number of thoughts and ideas were shared at the third annual Landscape Contractor Roundtable, sponsored by Husqvarna Forest & Garden, Charlotte, N.C.
One idea, however, kept coming up time and time again, and that idea was that the lawn and landscape industry will never realize its ultimate goal of influencing federal legislators to allow more immigrant laborers to cross the United States’ borders until these legislators are shown the size and significance of this industry.
"The government doesn’t realize how large of an industry the landscape industry really is," stressed Joe Aurilio, human resources manager, Mariani Landscape, Lake Bluff, Ill. "Until this industry is able to bring all of the large companies and key associations together to work with one collective voice, we won’t make any progress getting the laws changed so we can get the employees we need."
Unfortunately, Bryce Quick, senior director of legislative affairs for the American Nursery & Landscape Association, Washington, D.C., agreed with this sentiment, although he remains optimistic that gains made in the agricultural industry could spill over into benefits for the landscape industry as well.
"As we discuss the H2A guestworker program for the agricultural and nursery industry, we’re also discussing the H2B guestworker program for landscape contractors," noted Quick, adding that approximately 450 agricultural groups have joined the coalition supporting H2A. "But ANLA and ALCA are the lone voices, and the landscape industry will need to build a larger coalition so that when the H2A proposal starts to move through Congress we can attach H2B to that proposal."
For the immediate future, Quick is hopeful that the nursery industry’s H2A proposal to expand the number of visas offered to immigrants for this work and to give immigrants an adjustment in their citizenship status from a legal immigrant to a U.S. citizen after five consecutive years of employment in the agricultural industry will be signed into law this year.
"The problem with improving the H2B program is that the government doesn’t think the labor challenge facing contractors is a crisis for their businesses yet," Quick added. "Instead, H2B is always under attack from immigration control activists. In fact, 5,000 H2B visas were eliminated last year because they weren’t being used."
Quick said approximately 16,000 of the 63,000 H2B visas made available by the government were used in 1998, but that use has skyrocketed this year as more businesses have become aware of the program.
"The hotel and fishing industries have started using the H2B program as well, and as the labor market remains tight and the Social Security Administration continues to work with Immigration & Naturalization Services, we expect even more companies to go after those H2B visas," he explained.
The recent double-team effort of the SSA and INS that Quick referred to has led the government to explore using the SSA’s computer system to require employers to actually validate an employee’s citizenship before that person begins employment by verifying his or her social security number.
Making matters even more difficult for contractors is that the high-tech industry is also busy lobbying politicians for improvements to its guestworker bill, H1B, and that industry has a great deal more financial resources to employ.
"We, as the lawn and landscape industry, need to convince Congress that we need legal workers," encouraged Quick. "We need to show them that otherwise productivity will drop without this labor."
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