Undocumented Workers in the Workplace
Illegal Aliens is a pressing issue that affects a nation’s economic, demographic, and societal wellbeing. By definition, an illegal alien is a person that illegally immigrates into another country. Countries that have more resources or better opportunities than others will have the problem of undocumented persons trying to illegally enter. In fact, according to the 2000 United States Census there are approximately 8.7 million illegal immigrants in the United States and this number is growing each year at a rate of 500,000. There are numerous reasons as to why people leave their home country and risk imprisonment or deportation in order to create new lives in new places. Most significantly, businesses have been affected by the immigrant movement across borders. When the aliens try to settle down into an area, they need jobs to sustain their families. This coupled with the risk of deportation causes many illegal immigrants to take any job they can find that does not check their background. A dilemma is then created because employers are intrigued by the ability to utilize the labor of the aliens due to the low labor costs that they can incur. In the United States in particular, illegal immigrants have saturated many fields of business because of their willingness to take lower wages and no benefits, something that is not a competitive advantage to have when hiring legal citizens.
Illegal immigration is a hot bed issue that is very relevant to small businesses. Small businesses are always looking for opportunities to lower their overall costs. By doing this they can utilize time and resources into other opportunities. In this pursuit managers and owners look to hire illegal immigrants that can complete unwanted low paying jobs.
Understanding the laws and penalties involved with the work environment that incorporates illegal aliens is crucial to realizing the big picture issue. The ultimate pursuit is to make sure that all businesses are conducting business legally and in a fair manner. Countless amounts of lawyers and legislatures have spent time and effort to create laws that address the regulations behind hiring illegal immigrants. As well as laws that show businesses how to deal with illegal immigrants, there are unions and other agencies that try to help owners know their rights and risks that they have and utilize or give up when they are dealing with employing illegal immigrants. Some of these risks can lead to total closure of the business.
What is an Illegal Alien?
Many people have a general idea of what an illegal alien is, however far fewer know the parameters and definitions that constitute an illegal immigrant. According to the U.S. Citizenship and Immigration Service, “Illegal immigration to the United States refers to the act of foreign nationals violating U.S. immigration policies and national laws by entering or remaining in the United States without proper permission from the United States government.” This creates a wide umbrella that thousands of people of fall under. These people are involved in all areas of life in their new countries. More specifically there are certain parameters that designate a person as an illegal.
There are three major ideas of what makes a person an illegal alien. According to the National Press a person is considered illegal if they fall into the three following categories:
- by entering without authorization or inspection,
- by staying beyond the authorized period after legal entry
- by violating the terms of legal entry
Any violation of these three prescribed methods could lead to punishments by the government and face deportation. Immigration and Naturalization Service, or INS, is the main enforcer of the legal obligations of people entering the country and their acceptability and now works in conjunction with the United States Customs.
The largest contributor to the illegal immigration move is the ability to find jobs for the people willing to take the risk of crossing into a country.
Why Hire Undocumented Workers?
United States has been very involved in hiring illegal immigrants; in fact five percent of the labor force is made up by them according to Pew Hispanic Center. And this five percent produces and spends $800 billion every year back into the economy. Although hiring illegal immigrants can be very risky, its reward value to employers is often perceived as outweighing the cost of the risk. As a matter of course, the goal of any business is to make money, and for some, this can mean treading on thin ice with regards to ethical practice. So what are the primary motivating factors contributing to small businesses’ desire to see profit from this effort?
The most common and obvious reason is that hiring illegal immigrants minimizes labor costs. Most immigrants have taken residence in the US in hopes of finding means of employment paying far better than the jobs in their home country. In some cases, minimum wage for one hour in the United States is far greater pay than an immigrant’s entire daily wage back home. Hiring employees without proper documentation can result in penalties for both parties, however companies still exploit their undocumented workers by paying less than the federally mandated minimum wage; relying heavily on the employees fear that whistle-blowing might result in deportation.
Another advantage for business is that hiring illegal immigrants saves the company from paying welfare contributors and wage costs in the form of taxes and employee benefits. Small businesses in labor-intensive industries may have difficulty competing against competitors who hire workers for cheaper rates and pay fewer employee fees. To make a profit and stay competitive, business owners must either charge a premium for their product or service or find a means of cutting costs. Employers view the hiring of illegal workers as a business cost strategy. Unfortunately, the employees’ inability to bargain in such cases, has been known to result in discriminatory practices such as long hours of labor and frequent nonpayment of bonuses, overtime, or daily wages.
Also, the market for workers willing to supply labor for low payment is much greater among illegal aliens than it among American workers. In general, the nature of most labor-intensive jobs and the cultural context by which most Americans view them makes them less desirable among nationals, while they remain highly coveted by immigrants looking for work. The availability of cheap laborers is scarce among American citizens, leaving many low paying jobs up for grabs among undocumented workers. For business owners, it is especially valuable to hire employees who appreciate their work and pay, as is the case with most illegal hires.
One perceived benefit to society from this common business practice is the creation of a new market demographic and pool of consumers for a wide variety of goods and services that would otherwise be inexistent.
The following shows a timeline of legislation that has been made concerning immigration policy:
1952 – Immigration and Nationality Act
• This act, codified under Title 8 of the United States Code, restricted immigration into the U.S. and primarily governs immigration and citizenship in the United States.
1986 – Immigration Reform and Control Act
• This Act reformed United States immigration laws by making it illegal to knowingly hire or recruit illegal immigrants or immigrants who do not possess lawful work authorization. It also required employers to confirm their employees’ immigration status, and granted amnesty to certain illegal immigrants who entered the United States before January 1, 1982 and had resided there continuously.
1990 – Immigration Act
• This Act increased the number of legal immigrants allowed into the United States each
year, created a lottery program to randomly assign visas, and provided exceptions to the
English testing process required for naturalization set forth by the Naturalization Act of
1996 – Illegal Immigration Act
• This Act increased legal immigration ceilings, created a diversity admissions category,
and tripled the number of visas for priority workers and professionals with U.S. job offers.
2000 – Child Citizenship Act of 2000
• This Act provided that a non-U.S. citizen child aged under 18 with a U.S. citizen parent, and is currently in the custody of that parent, automatically acquires U.S. citizenship. To be eligible to attain that status, a child must meet the definition of “child” for naturalization purposes under immigration law.
After looking at the laws, it is pertinent to discuss requirements and penalties for breaking them and how to check a person’s status to avoid making a mistake.
It is illegal to hire an individual for employment in the United States without complying with certain employment requirements. Requirements include examination of identity documents and completion of Form I-9 for every employee hired. Employers must retain all I-9s, and, within 3 days notice, they must be made available for inspection. An employer can be convicted of harboring illegal aliens who are his employees if he takes actions in disregard of their illegal status, such as ordering or helping them to obtain false documents, altering records, obstructing INS inspections, or taking other actions that facilitate the alien’s illegal employment. Any employer who employs 10 or more people with the knowledge that they are illegal aliens within any 12-month period is also guilty of harboring. Issues regarding immigration laws can occur during the hiring period, the employment phase, and at termination e.g. if an employee hands in a temporary authorization from the Immigration Service, the employer must a) do his utmost to check that the document is legitimate and b) re-verify the employee’s legal status when the document expires. There are civil and criminal penalties for hiring illegal aliens. As mentioned before, Sec. 274 of the Immigration and Nationality Act (INA) and 8 U.S.c. 1324a, makes it unlawful for any person knowingly to hire, recruit or refer for a fee any alien not authorized to work.
- $250 to $2,000 fine for each illegal alien
- $2,000 to $5,000 for each illegal alien if the employer has previously been in violation
- The employer could also be fined $100 to $1,000 for each individual “paperwork” violation (e.g. incorrect completion and submittal of an I-9 form.)
How to determine if a worker is illegal
Any foreign alien has to have an I-9 form which is a document that proves you have the right to work legally in the United States. He or she also has to show the employer two different forms of ID such as a passport or driver’s license. An employer also has to check that the foreign alien is not on any terrorist list. If the foreign alien is an international student, employers must contact his or her advisor to make sure the student has the VISA required.
New hires are checked through the Department of Homeland Security (DHS) E-Verify System. E-Verify is an online system and is jointly ran by both the DHS and the Social Security Administration (SSA). It is a free and voluntary system and is the best way for employers to check the employment eligibility and validity of new hires’ Social Security numbers. Status checks can be carried out by employers on new hires by comparing information from an employee’s I-9 form against DHS and SSA databases. Over 67,000 employers are registered with the scheme, with over 6.5 million queries being made on employees’ legal statuses throughout 2008. The relevant website for employers to use this system is: http://www.dhs.gov/ximgtnlprograms/gc_118522167 150.shtm
In 2008 Westat compiled data that concluded 96.9% of employees are automatically confirmed as work authorized either instantly or within 24 hours, requiring no employee/employer action. This represents an improvement over the 96.1 statistic previously reported for the April through June 2008 time period. Only 3.1% of employees receive initial system mismatches (tentative non-confirmations – TNCs), and 0.3% of employees who receive initial mismatches later confirmed work authorized after contesting and resolving the mismatch. The remaining 2.8% of employees receive final non-confirmations (FNCs) and are ineligible to work in the United States legally.
There have been many complaints about the E-Verify system over the past two years. According to an article, Gabrielle Giffords, an Arizona Democrat, “The problem with E-Verify is that the system sometimes falsely rejects U.S. citizens and legal workers and wrongly approves illegal workers using stolen identities, putting employers at risk of firing legal workers and hiring unauthorized workers in violation of the law.
The complaints about E-Verify were confirmed in a report by a research company, Westat, hired by the Department of Homeland Security to evaluate the system. The Westat report found that E-Verify does an excellent job of verifying U.S. citizens and legal workers. The system runs names, birth dates and Social Security numbers against the Social Security Administration’s database and Homeland Security’s immigration database.
Ninety-three percent of the cases checked were legal workers or U.S. citizens who were accurately identified on the first try. The Westat report found that E-Verify does falsely reject some U.S. citizens and legal workers but only 0.7 percent of the time. E-Verify, however, does a poor job of preventing illegal immigrants using stolen identities from getting jobs. Westat estimated that 54 percent of the illegal immigrants run through E-Verify are wrongly deemed authorized to work, or about 3.3 percent of the total, because of identity theft.
The glitches in the system can cause major headaches for small business owners. However, as long as they follow the correct procedures and are able to prove they followed the necessary steps to insure the legality of their workers, small business owners can avoid penalties imposed by the government.
Hiring Alien Workers Legally
The legal process for an employer to hire an alien to work in the United States is extensive. Three common forms for hiring alien workers are outlined below.
Step 1: Register with the Department of Labor
An employer must attain a labor certification through the U.S. Department of Labor prior to hiring an immigrant worker. This certification is received by completing a Labor Condition Application (LCA), which is available through the DOL. Before the LCA can be approved the DOL must certify to the U.S. Citizen and Immigration Services (USCIS) that there are no qualified U.S. workers able, willing, or available to accept the job at the prevailing wage for that occupation in the area of intended employment, and that employment of aliens in that industry will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The LCA Online System has been developed to allow employers the ability to file Labor Condition Applications with the DOL through the web. This system automatically determines within minutes if the submitted LCA is approved or denied based on the entered information.
The following link will take you to a site to register for an online LCA. http://www.lca.doleta.gov/eta_start.cfm?actiontype=register
Step 2: Complete Appropriate ETA Form for Desired Program
To Hire a Worker Permanently
Filing the Form I-140
Following labor certification approval, the employer must file an Immigrant Petition for an Alien Worker (Form I-140) with U.S. Citizen and Immigration Services (USCIS). The employer then attaches the certified ETA Form 9089 to a completed USCIS Form I-140, along with the appropriate fees ($475), and submits the package to the appropriate USCIS Service Center. The petition is filed by the employer on behalf of the foreign worker and must include the approved labor certification and other USCIS specified documentation.
- To locate your local USCIS service center follow the following web link. https://egov.uscis.gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=LO
- The following link contains both instructions for completing Form I-140 and the form itself. http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4a5a4154d7b3d010VgnVCM10000048f3d6a1RCRD
Filing ETA Form 9089 & Preparatory Measures
The employer must complete an Application for Permanent Employment Certification ETA Form 9089 with the US DOL to gain approval to hire a foreign worker permanently.In addition to other conditions of employment, employers filing the ETA Form 9089 must prove they conducted recruitment prior to filing the application. Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) with jurisdiction over the proposed area of employment. In the application, the employer must outline the recruitment undertaken as well as describe the job duties, educational requirements, training, and required experience. If the application is approved, the ETA Form 9089 is certified and returned to the employer. Applications submitted by mail must contain the original signature of the employer, alien, and preparer, when they are received. Applications filed electronically must, upon return of the labor certification, be signed immediately by the employer, alien, and preparer, in order to be valid.
- Electronic version of the ETA Form 9089: http://www.foreignlaborcert.doleta.gov/pdf/9089form.pdf
- Instructions to aide in completing the ETA Form 9089: http://www.foreignlaborcert.doleta.gov/pdf/9089inst.pdf
- The following link supplies a complete list of appropriate SWAs: http://www.foreignlaborcert.doleta.gov/contacts.cfm
Additional requirements for permanent job placement are as follows:
- The job opportunity must be for a full time, permanent position.
There must be a job opening available to U.S. workers.
- Job requirements must adhere to what is normally required for the occupation in the U.S. and may not be tailored to the foreign worker’s qualifications.
- The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
Retention of records
Supporting documentation is required to be retained by the employer for five years from the date of the ETA Form 9089 filing. For example, the SWA prevailing wage determination documentation is not submitted with the application, but must be retained for a period of five years from the date of filing the application by the employer because it is supporting documentation.
Workers desiring to live and work permanently in the United States must obtain a Visa. “In general, to be eligible to apply for an immigrant visa, a foreign citizen must be sponsored by a U.S. citizen relative(s), U.S. lawful permanent resident, or by a prospective employer, and be the beneficiary of an approved petition filed with U.S. Citizenship and Immigration Services (USCIS). After the immigrant petition has been approved by USCIS, then the next step is preliminary processing for a visa with the Department of State, National Visa Center” (Bureau of Consular Affairs). Visa selection is a very complicated process that can take an exorbitant amount of time. It is wise to be prepared for this delay and to plan for it accordingly.
- The following link provides further visa information and access to documents to begin the filing process. http://www.travel.state.gov/visa/immigrants/immigrants_1340.html
Hiring H-1B Specialty (Professional) Workers
The H-1B program allows an employer to temporarily employ a foreign worker in a specialty occupation on a non-immigrant basis. A specialty occupation requires the practical application of a body of specialized knowledge and a bachelor’s degree. Current laws limit the number of foreign workers issued a visa or otherwise be provided H-1B status to 65,000, although special circumstances exist when seeking employees from Chili and Singapore (H-1B1) and Australia (E-3) The H-1B and H-1B1 certification is valid for up to three years, as indicated on the Labor Condition Application (LCA). A foreign worker may retain H-1B status for a continuous period of six years. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B can be approved.
Filing the USCIS Form I-129
“Employers may use this form to petition for an alien to come to the U.S. temporarily to perform services or labor, or to receive training, as a non-immigrant worker. Employers may also use this form to petition for an extension of stay or change of status for an alien as a non-immigrant” (Form I-129, 2010).
- The employer must determine the prevailing wage for the position using the following link to locate their local State Workforce Agency (SWA), which provides prevailing wage rates for the particular industry. http://www.foreignlaborcert.doleta.gov/contacts.cfm
o The employer may then submit a copy of the approved LCA to USCIS; a completed USCIS Form I-129 requesting H-1B classification.
- The USCIS Form I-129 can be found at the following link: http://www.visapro.com/Download/INS-Form-I-129.pdf
Filing the Form ETA 9035E
A completed Form ETA 9035E is posted to notify U.S. workers of the intent to hire a foreign worker to fill the position. The posting must occur within the 30-day period preceding the date that the labor condition applications is submitted to the DOL. Posting may occur in one of two methods: hard copy or electronic notice. The employer may submit a completed LCA on Form ETA 9035E through the LCA online system.
- The following link will take you to an online version of the ETA 9035E http://www.foreignlaborcert.doleta.gov/pdf/h1bcl.pdf
- The following link will take you to the online LCA system. http://www.plc.doleta.gov/eta_start.cfm?actiontype=home&CFID=3454514&CFTOKEN=2713936
Retention of Records
Employers must keep the LCA in its public file and provide a copy to workers for whom the LCA supports their visa.
Hiring a H-2A Temporary or Seasonal Agricultural Worker
The H-2A temporary agricultural program establishes a way for agricultural employers who anticipate a shortage of domestic workers to bring non-immigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. The statute and Departmental regulations provide for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to non-agricultural programs.
“Temporary or seasonal nature” means employment performed at certain time of year, usually in relation to the production or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign workers is truly temporary.
The Migrant Seasonal Protection Act, or MSPA, protects migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures and record keeping. The MSPA also requires farm labor contractors to register with the U.S. Department of Labor with the WH-530.
•To contact the nearest office of the Wage and Hour Division http://www.dol.gov/whd/index.htm
- To obtain the forms listed above or if you have questions regarding the necessary documentation. http://www.dol.gov/compliance/guide/mspa.htm
The following is a brief overview of some of the requirements that the MSPA has installed. For a complete list please visit the website listed above.
- Recruitment: The employer must agree to engage in independent recruitment of U.S. workers. This means an active effort in the area of intended employment. Such recruitment must be at least equivalent to that conducted by non-H-2A agricultural employers in the same area to secure U.S. workers.
- Wages: The wage or rate of pay must be the same for U.S. workers and H-2A workers. The hourly rate must also be at least as high as the federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher.
- Housing: The employer must provide free housing to all workers who are not reasonably able to return to their residences the same day.
- Meals: The employer must provide either three meals a day to each worker or furnish free and convenient kitchen facilities for workers to prepare their own meals
- Transportation: The amount of transportation payment shall be no less than the most reasonable similar transportation charges for the distances involved
- Workers Compensation Insurance: The employer must provide workers’ compensation insurance where it is required by state law.
- Three-Fourths Guarantee: The employer must guarantee to offer each worker employment for at least three-fourths of the workdays in the work contract period
- A complete labor certification application, ETA Form 750, must be filed with and received by the Chicago National Processing Center and local SWA at least forty-five calendar days before the first date on which workers are needed.
- The following web link is a complete list of appropriate SWAs. http://www.foreignlaborcert.doleta.gov/contacts.cfm
- The following web link contains both the ETA Form 750 and filling instructions. http://www.foreignlaborcert.doleta.gov/750inst.cfm
- Applications may be filed using either of the methods below:
o Filed in person with the Chicago National Processing Center and local SWA
o Mailed to the Chicago National Processing Center and local office of the SWA by certified mail, return receipt requested
o If the application is accepted for consideration, the Chicago National Processing Center will notify the employer in writing.
- Below is the link to the Chicago National Processing Center which contains the address. http://www.foreignlaborcert.doleta.gov/contacts.cfm
Harboring– any conduct that tends to substantially facilitate an alien to remain in the U.S. illegally.
I-9 form – I-9 refers to a form issued by the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS). Employers are required to complete a Form I-9 “Employment and Eligibility Verification” for all newly hired employees to verify their identity and authorization to work in the United States.
Department of Homeland Security (DHS) – is a Cabinet department of the United States federal government with the primary responsibilities of protecting the territory of the U.S. from terrorist attacks and responding to natural disasters.
E-Verify- E-Verify is an Internet-based, free program run by the United States government that compares information from an employee’s Employment Eligibility Verification Form I-9 to data from U.S. government records. If the information matches, that employee is eligible to work in the United States. If there’s a mismatch, E-Verify alerts the employer and the employee is allowed to work while he or she resolves the problem. The program is operated by the Department of Homeland Security (DHS) in partnership with Social Security Administration.
Social Security Administration (SSA) – is an independent agency of the United States federal government that administers Social Security, a social insurance program consisting of retirement, disability, and survivors’ benefits. To qualify for these benefits, most American workers pay Social Security taxes on their earnings; future benefits are based on the employees’ contributions.
Westat- an employee-owned research corporation serving agencies of the U.S. Government, as well as businesses, foundations, and state and local governments.
ETA Form 9089 – Application for Permanent Employment Certification
Form I-140 – Immigrant Petition for Alien Worker
Form I-129 – Petition for A Nonimmigrant Worker – May be used by employers when petitioning or extending the stay of non-U.S. citizens to temporarily enter the U.S. whether it is for training, performance of services or labor.
ETA Form 9035e – labor condition application for non-immigrant workers
5. Edmonston and Smith, The New Americans: Economic, Demographic, and Fiscal Effects of Immigration. National Academy Press.