Immigration Hard-Line Backfiring With Some Employers

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By Laura D. Francis

The Trump administration’s increased immigration enforcement could be making some employers less willing to comply with the law.

“It’s putting employers back into a mindset that we saw 10 years ago,” Ian Macdonald of Greenberg Traurig in Atlanta told Bloomberg Law. They’re starting to think it’s “not worth it” to enroll in E-Verify or keep photocopies of employees’ original identification and work authorization documents, he said.

Employers are thinking that if they’re going to be audited and fined anyway, they might as well just do the “bare minimum” to comply, Macdonald said May 30.

The agriculture industry in particular has reasons to avoid the electronic employment verification system.

“I don’t think you would find a lot of agricultural employers that would voluntarily be using E-Verify,” Paul Schlegel, managing director of public policy and economics at the American Farm Bureau Federation, told Bloomberg Law June 1.

About half of the agriculture workforce is believed to be undocumented, based on the Labor Department’s National Agricultural Workers Survey. Using E-Verify would reveal those workers’ immigration status and require that they be fired, Schlegel said.

E-Verify checks the information on workers’ documents against government databases to ensure that those workers have employment authorization. Unlike with I-9 forms, the system is largely voluntary, with some exceptions.

Incentives to Enroll

For some employers, there’s still an incentive to use the electronic employment verification system.

Sarah Hawk says she hasn’t seen employers shying away from E-Verify despite the possibility of Immigration and Customs Enforcement audits. Hawk is with Polsinelli PC in Atlanta.

In fact, she told Bloomberg Law June 1, enrolling in E-Verify can have outside benefits for certain employers, like being able to host workers in the optional practical training program for international students with science, technology, engineering, and mathematics degrees.

For Hawk’s corporate clients, compliance with immigration laws is an even higher priority given increased work-site enforcement.

Employers are “really asking questions” about even minor mistakes on their employees’ employment verification forms, known as I-9s, she said. There’s been “a lot of I-9 review,” and employers are now recognizing that what seems like an easy process can have serious consequences “if it’s not being done correctly,” she said.

Push to Make E-Verify Mandatory

The Trump administration has been pushing to make E-Verify mandatory largely through budget proposals sent to Congress. The White House also threw its support behind an immigration bill (H.R. 4760) introduced by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) that would require all U.S. employers to enroll in the system.

But White House officials said in the past few months that they’ve backed off that particular demand in the hope that it would help Congress reach an immigration deal. President Donald Trump instead demanded that an immigration bill that provides legal status for young, undocumented immigrants also include a border wall and eliminate diversity visas and certain family-based visas.

Lawmakers were unable to reach a deal despite a series of votes in the Senate in mid-February.

Some Employers Using E-Verify Despite Risk

Some employers in industries at “high risk” for enforcement—such as agriculture, construction, landscaping, and hospitality—decided to enroll in E-Verify to go the extra step on compliance—and be a “good corporate citizen,” said Macdonald, co-chair of Business Immigration & Compliance Practice and his firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group.

Many of those companies are audited and fined anyway, and some have had to fire a quarter of their workforces because they’re undocumented, he said. These employers feel they “should get some kind of break” because they “tried to do the right thing,” he said.

The Immigration and Nationality Act only requires that employers look at workers’ documents and decide whether they seem reasonably genuine, Schlegel said. But companies can’t continue to employ someone they know is undocumented—a fact E-Verify would likely reveal.

The American Farm Bureau Federation would support mandatory E-Verify only if Congress also provided legal status for undocumented farm workers and a workable guestworker program that ensures an adequate future labor supply, Schlegel said.

Goodlatte’s bill would provide the guestworker program, but not legalization, he said.

Opportunity for Ag?

The federation has been lobbying Goodlatte to get a legalization provision in his bill before it lands on the House floor, Schlegel said. The federation has also been in talks with House leadership about including ag-friendly provisions in any future immigration bill backed by Speaker Paul Ryan (R-Wis.), he said.

A petition to force a vote on immigration legislation has been steadily gathering signatures from both Republican and Democratic members of the House since it was introduced May 9. It currently has 213 of the 218 signatures needed.

Rep. Will Hurd (R-Texas), one of the discharge petition’s backers, said on CBS’s “Face the Nation” June 3 that he and his colleagues have gathered enough Republican support to force a vote this month.

The discharge petition would invoke a “queen of the hill” rule that would require the House to vote on four immigration bills, including Goodlatte’s. Whichever garners the highest number of votes above 218 would move on to the Senate.

Schlegel said the agriculture industry is “extremely worried” that it will be left out of the immigration discussion in Congress, which is focused around legal status for young, undocumented immigrants in the Deferred Action for Childhood Arrivals program. “That would be a critical, critical mistake,” he said.

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