By Jeff Book

What: Shifting regulations make hiring workers perilous.

From left to right: Ismael Gonzalez, Diego Garcia, David Gonzalez work for John Russell Landscape Architect, Inc., Birmingham, Alabama

Bottom Line: Knowing the rules and getting expert help can keep your business above the fray.

If you’re in the landscape industry and haven’t had problems finding and retaining workers, you’re among the lucky few. After all, the work can be physically demanding, pay modest and chance of year-round employment challenging. Even with unemployment painfully high, many companies find it hard to meet all of their labor needs with American citizens. To fill the gap, they hire foreign-born workers who’ve earned a reputation as hard-working and reliable. These workers make a big difference for many companies.

But immigration remains a hot-button issue. Most agree the immigration system is broken, but the solution is nowhere in sight. The last major immigration reform was in 1986 — a big reason there’s little talk of green cards in the landscape industry now, since workers who gained that right-to-work document through that reform’s amnesty program are retiring. Even veteran employers of immigrant laborers say it’s easy to go astray in the maze of shifting regulations.

Wiggle room is diminished with the growing use of the government’s E-Verify employee documentation system.

Stricter enforcement is the trend, so knowing the rules is essential. The biggest minefield for landscape companies involves H-2B visas (more on that below). But the most widely applied rule is the one requiring employers to have I-9 forms for all employees, both citizens and non-citizens. The I-9 form is designed to weed out ineligible workers by requiring companies to confirm documents establishing identity and employment authorization. Some, such as a driver’s license and government ID, only prove identity. Others, such as non-restrictive Social Security card and birth certificate, only authorize employment, while others, like a U.S. passport and permanent resident card, do both.

To prevent discrimination, employers are prohibited from requesting specific documents — such as the ones that would permit them to hire someone — but workers still manage to learn what papers they must have to be legit (information printed on the back of the I-9 form).

While some applicants may present false documents, most employers only have to make a good-faith effort to confirm the worker has the necessary documents and they appear to be authentic. If that’s the case, the government has generally not held the employer accountable. Wiggle room is diminished, however, with the growing use of the government’s E-Verfiy system. The U.S. Citizenship and Immigration Services (CIS)— formerly the Immigration and Naturalization Service and now part of the Department of Homeland Security — operates this Internet-based system in conjunction with the Social Security Administration. Used to verify worker eligibility electronically, it is now mandatory for most Federal contractors, as well as certain employers in a growing number of states — and all employers in Arizona, whose E-Verify law was challenged last year in the U.S. Supreme Court (verdict pending). State laws vary widely but often favor E-Verify for state agencies, state contractors and new hires.

The CIS bills E-Verify as “fast, free, and easy to use.” Employers enter the information from the I-9 form on the E-Verify website, and the system checks it against a database of millions of Social Security, visa, and other records. Most observers expect E-Verify to become mandatory in more states and for more employers. Fortunately, with better database integration, the system is more effective than early on, when it would sometimes reject legitimate workers. The government says E-Verify approves 98.3 percent of workers instantly or within 24 hours. But that percentage is no doubt lower in the landscape industry, with its higher use of foreign-born labor.

“This is an extremely sensitive and scary issue,” says a landscape business Owner in the D.C. Area who wants nothing to do with E-Verify. “We think we have pretty good documents for our workers, but you never know what an audit would turn up. If they really cracked down it could put companies out of business, and not just in our industry.”

A January 2011 Bloomberg News report found more than half of workers deemed ineligible by E-Verify were later determined to be legal. And arguing before the Supreme Court in the Arizona case, Cynthia Valenzuela Dixon, Director of Litigation for the Mexican American Legal Defense and Educational Fund, noted “error rates are significantly higher for naturalized citizens, foreign-born workers with employment authorization and workers with non-English surnames.” (Of course, errors run both ways: E-Verify sometimes authorizes ineligible workers.)