Companies urged to pay more attention to immigration law
Faced with the prospect of changes in federal immigration policy and enforcement, some immigration experts are advising employers — including construction firms — to strengthen their record-keeping processes and develop plans to deal with workplace raids.
During the 2024 election, Donald Trump promised to crack down on undocumented immigrants in America and execute a mass-deportation policy. Following the election, Trump’s nominee for “border czar,” Tom Homan, announced that he plans to resume workplace raids in order to remove undocumented workers.
During the first Trump administration, such raids focused primarily on food-processing and manufacturing facilities. However, immigration experts warn that construction companies could be the target of future raids.
The construction industry is one of the largest employers of foreign-born workers. The Pew Research Center estimates that 26 percent of construction-industry workers are immigrants and half of that population is not authorized to work in the United States. The American Immigration Council estimates that undocumented workers make up 39 percent of plasters and stucco masons, 36 percent of drywall and ceiling installers, 36 percent of roofers, and 31 percent of painters.
Given the Trump Administration’s promise to heighten scrutiny, raids and deportation, “you don’t want to be on the radar of the federal government,” said Sheela Murthy, Founder and President of Murthy Law, an immigration law firm headquartered in Owings Mills.
Murthy said employers need to avoid hiring undocumented workers and be vigilant about documenting the status of their entire workforce.
Some immigration law firms are warning clients that the new federal administration will expand its I-9 audits — the review of documents that attest to the status of all employees.
Consequently, employers should conduct their own internal, I-9 audit now both to verify workers’ status and to demonstrate due diligence in identifying and dealing with any employees who do not have work authorizations or have insufficient documentation to prove their status.
Construction companies, especially general contractors, may also need to address the topic of immigration with their subcontractors. Although GCs are not legally required to verify the status of subcontractors’ workers, GCs may want to alter contract language to require heightened compliance with immigration law. The presence of undocumented workers on a construction site could draw federal attention and prompt I-9 audits or worksite raids.
“GCs should have strong provisions in their subcontractor agreements, requiring the subcontractor to comply with federal and state immigration regulations and E-verify, requiring the subcontractor to have an experienced immigration attorney conduct an annual immigration compliance certification, and obtaining indemnity from the subcontractor for any immigration violations,” Shanon Stevenson, partner in the Atlanta-based law firm Fisher & Phillips, said in a recent Construction Dive article. “Any agreements that do not currently contain such clauses to protect GCs should be amended.”
Construction companies also need to develop a plan for dealing with worksite visits or raids by agents from Immigration and Customs Enforcement or Homeland Security Investigations and train their staff on how to execute that plan.
While agents will give employers up to three days advance notice of a workplace visit to conduct an I-9 audit, they provide no advance notice of a worksite raid that is designed to apprehend undocumented workers.
The National Immigration Law Center advises workers at the site of a raid to insist that agents show them a warrant signed by a judge that correctly lists the company’s name and address, and email a copy of that warrant to their employer’s attorney.
Workers present during a raid are not permitted to help an individual flee the scene. And workers are urged to remain calm and in place. However, workers also don’t have to help federal agents by identifying a targeted worker or verifying whether that person is present or not.
“You need to put a protocol in place for dealing with visits from immigration officials and then mentor and train your people so there are no surprises and nobody freaks out,” Murthy said. “Sometimes people start sharing a lot more information than is required under federal law. My philosophy is don’t ever give the government way more information than is required because they can use that extra information against you.”
Immigration experts caution that other immigration issues may arise in the coming months.
During the election campaign, Trump proposed ending Temporary Protected Status (TPS) for some immigrants who are currently, legally working in the U.S. The Republican Party is currently debating the future of the H1B visa program, which permits engineers, IT workers and other highly skilled individuals to work in the U.S. Some members of the Trump Administration have also discussed closing the U.S.-Mexico border or implementing travel bans, which could prevent current employees of U.S. companies from re-entering the country.