Immigrant Labor Quagmire

Updated Feb 19, 2013

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, Alaba

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.)

Web-based solutions like Guardian ( and can help reduce errors — say, by notifying an employer that someone’s I-1551 (a.k.a. green card) is about to expire — and avoid fees or penalties in the event of an audit. Bear in mind that CIS has fined companies for mere technical I-9 violations, even when they have no unauthorized workers.

“It’s hard to find Americans who will do hard work for $10 an hour. It doesn’t help that we have to advertise months in advance of when the jobs start.”

“We saw where it was going and decided to get ahead of it,” says Leah Pamplin of Heart of Texas Landscape & Irrigation in Austin, Texas, a TLC 2011 Landscaper of the Year Finalist. “We had an immigration attorney do an audit of all our I-9s. Then we signed up for Guardian and began entering all the I-9 information for each employee using their system. Guardian’s software catches mistakes and omissions. We also scan and upload the I-9s to their website, so we have backups if something happens to our computer.”

Still, many employers prefer the old, good faith approach of verifying documents that look authentic, rather than the more rigid E-Verify system. But there’s always the risk of an audit. If you have a worker whose social security number belongs to someone deceased, you may wish to know about it before the government comes knocking.

“The vast majority of our clients are already using our E-Verify option,” says Guardian spokesman John Fay. “It automatically sends the completed I-9s to E-Verify and alerts the employer if there’s a mismatch.” (Cost varies by number of I-9s and other factors.) More than 238,000 employers are using E-Verify, and every year Congress, threatens to make it mandatory for all.

Whether or not you’re ready to sign up for E-Verify, one look at the 69-page CIS manual on I-9 compliance may convince you to seek outside help to meet this evolving mandate.

The difficulties of dealing with the H-2B visa program make I-9 issues pale in comparison. Like the H-2A visas for agricultural workers, H-2Bs are designed to allow temporary employment of foreign workers in seasonal industries — which puts landscapers in competition with roofers, ski and summer resorts, golf courses, fruit and seafood processors and other unlikely bedfellows. Employers can hire H-2B workers for up to 10 months after submitting proof that they tried and failed to find American workers. The regulations and restrictions are daunting. “Nobody uses the H-2B program because it’s easy,” says Elaine Lord of YardApes Landscaping in New Milford, Connecticut, another TLC 2011 Landscaper of the Year Finalist.

The number of H2B visas is capped at 66,000 annually, divided into 33,000 for each half of the government’s fiscal year (which starts on October 1 of the previous calendar year). This permits a more even distribution throughout the year. Still, when the economy’s strong, there aren’t enough visas to meet demand.

A 2005 law that exempted returning workers from the cap made it easier to obtain H-2B workers in 2006 and 2007. But when Congress failed to extend it, the cap was quickly reached in 2008. That year many employers had their applications denied, costing them not only expected workers but time and money. “A lot of people got disgusted after that and left the program,” Lord says, “which leads me to wonder where they’re getting workers now.” Since then, thanks to sharply reduced demand during the recent recession, the 66,000 limit has not been a problem. But when demand finally picks up, expect the crunch to resume.

Employers cannot file for H-2B visas more than 120 dayes before the date of need. Thus, landscapers seeking workers to start on April 1 file in early January (but should start laying the groundwork well before that). The Department of Labor verifies the applicant has a legitimate need for seasonal labor and stipulates the prevailing wage in that location for the jobs to be filled. The employer then has to advertise for local workers, at least two days in the newspaper (Saturday-Sunday or Sunday-Monday), plus a 10-day recruitment order with the state workforce agency.

“Nobody uses the H2B program because it’s easy.”

Landscape business owners say the typical response argues against those who say H-2B workers are taking jobs away from Americans. For more than a decade, Reliable Landscaping and Tree Care has employed five or six H-2B workers every year. “It’s hard to find Americans who will do hard work for around $10 an hour, which is where we start our workers,” says Lee Mueller, owner of the St. Louis-area business. “It doesn’t help that we have to advertise months in advance of when the jobs start.

“Last time we had 60 people respond. Some were just trying to keep their unemployment benefits going,” Mueller says. “About 10 were disqualified because we require a drug test and can’t hire sex offenders because we work around schools. Some didn’t want to wait that long to start work. Others didn’t make it to their interview appointments. The three people we finally hired didn’t show up — and only one bothered to call and let us know.”

“Last year, we hired four American workers through the H-2B process, and only two showed up,” says Shayne Newman, owner of YardApes. Many landscapers say too often American workers quit when it gets hot or they find a better job.

Employers in the H-2B program have to document all local applicants and why they were accepted or declined. Well-intentioned government efforts to protect American workers can result in likely failures. “We’ve had to hire people who don’t have cars and have to travel an hour or two on public transportation each way — so it’s no surprise when they don’t last,” Lord says. “If job candidates don’t show up for the interview, we have to call them. If they don’t call back, we send them a certified, return-receipt requested letter, and then we have to call them again. After all that we can say we won’t hire them. Do you think that person would have a hope of being hired in any other situation?”

After the Department of Labor receives the required documentation and certifies the application (and number of visas), it is submitted for approval to the CIS, which transmits the authorization to the U.S. consulate in the workers’ country of origin. To receive a visa, workers must be interviewed by consular (State Department) staff. Certification is issued to the employer, not the worker.

“Mexico is the biggest supplier of H-2B workers for the landscape industry,” says Tom Delaney, director of government affairs for the Professional Landcare Network (PLANET). “The State Department weeds out workers who might pose a flight risk. They favor people with family and property in their country and with no criminal record. These folks don’t want to stay in the U.S. — they’re making money to support their family, build a house, pay for education.” The H-2B program allows employers to bring back proven workers year after year, always subject to government approval.

“The government’s attitude seems to be, If it ain’t broke, fix it till it is,” Wingfield says.

Now, with demand not exceeding the H2B cap, most employers use agents to handle the involved process. In better economic times, it wasn’t unusual to have all available H-2B slots for the main landscaping season — the fiscal half-year beginning April 1 — filled by early January, soon after the first day applications could be accepted under the 120-day minimum-lead-time rule. These specialists track rule changes and application deadlines, guide efforts to hire American workers and recruit immigrant workers through trusted foreign contractors.

“Most of our clients are small businesses,” says Libby Fulton of Mas Labor Solutions (, the H-2B specialist used by YardApes. Agents like Fulton and Bob Wingfield of Dallas-based

Amigos Labor Solutions (, the H-2B agent Lee Mueller uses, work with many landscape businesses.

In addition to the agent’s fee, costs include government fees (many recently increased): a $320 filing fee, $150 fraud detection fee and a (recommended) $1,000 premium processing fee. As the Mas website notes, employers must pay all regular local, state and federal payroll taxes for H-2B workers, including those for Social Security and unemployment, as well as standard overtime. Employers must also pay workers’ visa fees and transportation costs from their home country to their U.S. destination. Wingfield says companies should also expect to help workers find adequate housing, work clothing and transportation.

All of the costs and hurdles are worth it for the many companies that depend on foreign workers. Fulton and others worry that increasingly restrictive regulations will make it harder for businesses to fill their employment gaps with H-2B workers.

“The government’s attitude seems to be ‘if it ain’t broke, fix it till it is,’” Wingfield says. PLANET and other trade groups are contesting a Department of Labor ruling that would raise the required prevailing wage, perhaps by 20 percent or more, effective next January. Delaney is lobbying hard against that, and for restoring the policy of not counting returning H-2B workers under the cap. “Congress could soon make E-Verify compulsory for everyone,” Fulton says. “I’ve heard that some in the government want to change the H-2B term from 10 months to nine and treat it as a contract, so employers would have to pay workers for the whole period instead of just what they need. Also, seasonal workers are not exempt from the new health care law.” She and others expect the result to be greater (and riskier) use of undocumented workers.

“Labor problems have led many farmers to move or expand operations south of the border,” Fulton says. “Landscapers are stuck here. The cost and complexity of these programs are increasing as availability of American workers is declining. It’s a looming disaster.

“I hope common sense prevails.”


Immigrant Labor Issues by the Numbers


Number of workers found ineligible by E-Verify, later determined to be legal

69 pages

Immigration & Customs Enforcement manual on I-9 compliance


Annual cap for H-2B visas


Earliest employers can file for H-2B visas before date of need

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