Immigration: Crackdown Time

Worker laws get more confusing

In late September, with a helicopter whirring overhead, about 20 armed agents from Immigration & Customs Enforcement (ICE) stormed Hedges Landscape Specialists in Louisville. The agents took away 8 of the landscaping company's 45 employees on suspicion that they were illegal immigrant workers. The employees are being held in a detention facility in Chicago, awaiting deportation. Dean Hedges, the company's owner, pleaded guilty to criminal charges of hiring undocumented workers. Hedges, who had no previous criminal record, faced up to two years in prison, according to his attorney, John Caudill. But after a plea bargain, Hedges will pay about $200,000 in fines to avoid incarceration, says Caudill.

Things are tough for entrepreneurs who depend on foreign workers. Between 2002 and 2006, the number of ICE worksite arrests has grown sevenfold, to 716 criminal arrests and 3,667 arrests on civil charges. And, say experts, many cases the federal government is prosecuting on criminal charges would have been considered civil offenses until recently. Even entrepreneurs who hire workers legally will find increased bureaucratic challenges due to recent changes in federal regulations. Making matters more confusing, 10 states have issued their own often-contradictory immigration laws. "The owner of a business and any employee who completes an I-9 [hiring form] can be subject to fines and imprisonment," says Susan Storch, partner at law firm Fragomen Del Rey Bernsen & Loewy in Iselin, N.J. "It is much more serious than it has been."

LEFT IN LIMBO The Homeland Security Dept. (DHS) announced in August it would begin using the Social Security Administration's "no-match" letter program, heretofore an administrative formality that informs employers that an employee's name did not match the Social Security number the employee presented, and that they might be violating immigration laws. Those letters now come with a second letter from DHS saying the employer must resolve discrepancies within 90 days or face criminal and civil proceedings.

In October, the U.S. District Court for the Northern District of California issued an injunction against the regulation, preventing the changes from going into effect pending further court action. Then, in November, the court suspended the injunction, giving DHS until late March to reassess and rewrite the regulation. "This leaves small businesses in limbo, where the regulations are not in effect but ICE is going after employers," says Charles Kuck, president of American Immigration Lawyers Assn. in Washington.

Until the rules are ironed out, business owners are obligated to clear up discrepancies on I-9 hiring forms. But doing so isn't always easy, as Title VII anti-discrimination laws prevent employers from asking questions that might seem prejudicial about an employee's country of origin. "You start stepping over tender ground when you talk about presenting other documents," says Storch. Employers also can't identify a specific document they'd like to see, and may only refer to the list of documents on the I-9 form, such as birth certificates and passports.

In the meantime, Arizona, Arkansas, Colorado, and Illinois are among the states that have issued their own laws that may go beyond what the federal government requires. Colorado, for example, requires employers to have their workers sign an affidavit of their eligibility to work. Other state laws conflict. Illinois prohibits employers from using the E-Verify program, a central database of Social Security numbers used to verify employee eligibility to work, while Arizona requires all employers to use it. This means employers who comply with federal laws might wind up breaking laws in their own state, says Storch. And those that do business in multiple states are left juggling statutes and hoping no agents come to their door.

Back to BWSmallBiz December 2007/January 2008 Table of Contents

Discuss this story!