Muddled Immigration Rules Threaten Undocumented Construction Workers

Lorena Berrios never had it easy; now she’s in the fight of her life. As a child in El Salvador, she survived civil war. After gaining Temporary Protected Status (TPS) in 2001 to live in the U.S., she settled in New York City with three children, joining Laborers’ union Local 78 in Long Island City, N.Y. as an asbestos abatement worker two years...
Lorena Berrios
Temporary worker Lorena Berrios at Queens, N.Y., union training site: “We came here to work. That’s what we do. We work very hard—and contribute.”
Lorena Berrios
Lorena Berrios (above), a Salvadoran native who now is a journeyman union asbestos worker in New York City, and her son, Isrrael Rodriguez (next photo), also a union member, face immigration status uncertainties amid political battles building in states and in Washington, D.C.
Isrrael Rodriguez
Lorena Berrios (previous photo), a Salvadoran native who now is a journeyman union asbestos worker in New York City, and her son, Isrrael Rodriguez (above), also a union member, face immigration status uncertainties amid political battles building in states and in Washington, D.C.
Undocumented construction workers arrested
In what the U.S. Immigration and Customs Enforcement agency has signaled as a stepped-up crackdown on undocumented workers in the U.S., agents arrested 14 alleged undocumented construction workers in a mid-January raid in Colchester, Vt. Others fear more industry-focused enforcement in other places.
California contractors
California contractors are caught between federal and new state edicts and potential enforcement and fines related to providing updates on workers’ immigration status. The confusion prompted new guidance from one state contractor group.
Laborers’ union members protest
Laborers’ union members protest proposed cutting of temporary-worker status rules at a Capitol Hill rally (above), while Harvard University students speak out against coverage ending for immigrant children, the “dreamers,” brought to the U.S. for study and work (next photo).
Harvard University DREAMERS
Laborers’ union members protest proposed cutting of temporary-worker status rules at a Capitol Hill rally (previous photo), while Harvard University students speak out against coverage ending for immigrant children, the “dreamers,” brought to the U.S. for study and work (above).
Ricardo Carlo
An Arizona law permitting immigration status checks chased out “good” contractors, says trade-group exec Ricardo Carlo.

Lorena Berrios never had it easy; now she’s in the fight of her life.

As a child in El Salvador, she survived civil war. After gaining Temporary Protected Status (TPS) in 2001 to live in the U.S., she settled in New York City with three children, joining Laborers’ union Local 78 in Long Island City, N.Y. as an asbestos abatement worker two years later. “

Working in construction gave me economic stability,” says Berrios, 48. “Even though we have struggled, I am proud to say none of my children joined any gangs or were involved in any crime activity.” She says she regularly worked overtime to support the family as a single mother and to prove her worth in a tough male-dominated field. “I’ve had the opportunity to have a decent life with them and to continue supporting their dreams,” Berrios says.

Despite the challenges of Berrios’ two-decade American existence, bigger hurdles could emerge with President Donald Trump’s decision not to renew TPS for Salvadoran immigrants.

“I’m scared because if TPS is gone, everything I have achieved will be gone, too,” she says.

Berrios’ three children—two of whom also are union laborers—now face uncertain status as well under the Deferred Action for Childhood Arrivals (DACA) program created in the Obama era to allow immigrant children, the estimated 800,000 “dreamers,” to remain for school or work.

Trump last year moved to end DACA on March 5—to make good on campaign promises to reform and restrict immigration—without a Congressional resolution put in place. Federal court rulings in California and New York that struck down the action, and the U.S. Supreme Court decision not to hear the cases, offer time but no policy clarity.

Without further resolution on both TPS and DACA, Berrios and her children could face deportation next year.

As of March 23, a legislative fix remains in limbo, as Trump signed a $1.3-trillion spending bill with no new immigration policy.

“It’s just sad we’re being targeted,” says Berrios’ son Isrrael Rodriguez, 29, a four-year Local 78 member. “The only thing we’re asking for is a chance to change our status.”

Adds his mother: “We love this country and want to stay. We came here to work. That’s what we do—we work very hard and contribute.”


High Anxiety

These are anxious times for many current and prospective immigrant construction sector employees and their employers.

As firms face big staffing gaps, challenges to immigrant hiring could leave at least 1.5 million workers at risk. Political battles and litigation now extend to the states and into academia. Local governments, institutions, advocates and trade groups are battling federal actions and are pushing to keep temporary workers, visa-holders and undocumented populations in place

Other potential policy changes, such as restrictions on new student and professional visas and guest-worker programs, as well as changes in legal immigration rules, also hang in the balance. These could disrupt industry projects and operations, and potentially close firms, if they are unable to replace skilled immigrant workers.

The exact number of immigrants in construction who could be affected by current and pending policy changes is difficult to track, with varying levels of reporting (see charts, at top). Studies identify about 41,000 DACA-covered workers and some 37,000 TPS-protected Salvadorans in construction. Notably, the University of Kansas Center for Migration Research study found that, among working men, 23% reported employment in construction or in painting—the number one source of work.

More broadly, a 2017 Pew Research Center study reported that of roughly 10 million U.S. construction workers, 15% are undocumented immigrants and 12% are legal. About 21% of adult undocumented workers in California work in construction, according to the University of Southern California Center for the Study of Immigrant Rights.

In other estimates, the U.S. undocumented share is 24%, while Texas-based economist and longtime immigration trends analyst M. Ray Perryman says that the state has a 30% proportion.

“The bottom line is that the U.S. needs the immigrant workforce,” he says, noting that in Texas, “there are more undocumented individuals working than there are unemployed people,” and that their need in construction “is particularly acute.” According to Perryman, with an aging population, “immigrant workers are an important part of a multifaceted solution.”

“Strong demand, coupled with disincentives to immigrate to the U.S., is exacerbating construction-sector labor issues.”

–M. Ray Perryman, Texas economic forecaster

But the Trump administration’s proposed restrictions also come as booming industry work drives down unemployment and requires expanded payrolls.

The Associated General Contractors reported in January that 75% of firms plan to expand staff in 2018, and 82% expect key difficulties in filling worker gaps. TPS holders are a major construction workforce presence in large cities such as New York City, Los Angeles and Miami, says the National Immigration Forum. With the largest Salvadoran community in the U.S., the Washington, D.C., area is bracing for a significant local industry impact if TPS holders must depart.

“You think we have a tight labor force now? Wait until TPS ends—then we will really feel it,” says Dennis Desmond, business manager at Washington, D.C.-based Laborers’ union Local 11, whose membership has nearly doubled since the recession.

Of its 3,100 laborers serving nearly 200 contractors, he estimates 25% are TPS holders. Even if contractors are able to replace experienced skilled labor with new apprentices, there could be jobsite consequences.

“There’s a lot of evidence that most accidents happen within the first six months of a new employee starting out [in a trade],” Desmond says.

Such a workforce turnover could be devastating for Independence Excavating, says John Percun Sr., its mid-Atlantic general manager, who says more than 75% of his workers are immigrants.

“A lot of my guys work 12 ft to 18 ft in the ground, installing sanitary and water mains. There’s a whole lifetime of experience—understanding ground conditions and grades, and dealing with the water,” he says. “These are skilled workers who have been doing it for 20 years."

Percun adds: "Everyone who complains and wants to send them back so there’s more work for us … You can’t find workers right now in this region. I understand there are people here illegally and that needs to be addressed, but taking out the whole bunch? I don’t agree with that.”

In a January article, U.S. Chamber of Commerce immigration policy director Jon Baselice called for extending TPS, contending the economic impacts of workforce disruption “is not sound policy.”

Jim Young, AGC director of strategic communications and congressional relations, says up to 50,000 workers could be affected by ending TPS designations.


Following Forms

In addition to those potential upheavals, ramped-up workplace enforcement through audits and more undocumented-person arrests by U.S. Immigration and Customs Enforcement also loom for industry firms.

The federal spending bill included a 10% budget increase, or $641 million, to ICE for 65 agents, although far less than Trump’s request for funding for 1,000. new agents Even so, the agency cites increased arrest totals last year for immigration-law violators.

In what was called Vermont’s largest such raid, ICE agents in January arrested 14 undocumented construction workers at a hotel in Colchester. “There’s no pathway for the majority of people who come to work in our state’s dairy industry or construction, to ‘do it the right way,’ ” said Will Lambek, a spokesman for state-based advocacy group Migrant Justice, in a statement. ICE officials did not identify the workers’ employer or type of construction.

California employers are already preparing for more scrutiny of I-9 forms that verify workers’ employment eligibility in the wake of state and local political and legal battles with the Trump administration over sanctuary city protections and bans on bids from firms that work on the planned Mexican border wall expansion.

The state also just passed a new law that bars employers from allowing ICE agents into non-public workplace areas or from obtaining or reviewing employee documents without a warrant. Penalties range from $2,000 to $10,000 per violation.

ICE officials said in a news release that the new state law is intended “to interfere with federal immigration enforcement authorities” and that they “expect employers and state officials to comply with federal law.”

California Gov. Jerry Brown (D) said the federal stance is akin to “initiating a reign of terror” against immigrants.

The federal-state battle has construction-sector firms caught in the middle, prompting one group of construction firms located in the Bay Area, United Contractors (UCON), to rush out new guidelines in late February for handling ICE audits (see graphic, at top) for its estimated 450 union firms.

“Members are worried,” says group CEO Mark Breslin. He notes enforcement also during the Obama years, including one audit of a member firm that resulted in a significant number of immigrant employees—including some working there for up to 20 years—to leave abruptly rather than risk being let go or arrested over document issues.

Breslin says that with audits now “continuing at an increased level, members are keeping their heads down.”

But he emphasizes that firms are “deeply concerned with prospective serious impacts to employees … who have shown decades of commitment and loyalty to their companies, unions and the industry.” In California, the industry economic impacts “would be profound,” Breslin says.

“The construction industry has been largely silent on this issue. We have a lot to lose and need immigration reform to keep growing.”

–Kevin Albanese, CEO, JJ Albanese Inc., Santa Clara, Calif.

Former UCON President Kevin Albanese, CEO of contractor JJ Albanese Inc., Santa Clara, Calif., says construction needs to be more visible in the immigration reform debate.

“The industry has been largely silent in this issue, but we have a lot to lose and we need immigration reform to continue growing,” he says. “That means giving the 11 million people who are already here illegally a path to working here legally. They will not be taking jobs from citizens because workforce demographics have changed.”

Stan Marek, CEO of the Houston specialty contractor Marek Bros. Systems, says the local market can’t survive without an immigrant workforce.

“I could hire 500 people tomorrow, if they had an I-9,” he says. “We need anyone who can pass a background check.” Marek says he may even spend up to $5,000 per worker to obtain some form of legal status, such as a visa, to allow them to gain training and experience.

Marek advocates for what he calls an “ID and tax” plan that would enable immigrants living in the U.S. for more than 10 years to earn a federal ID card if they could pass a background check. The ID would allow the person to legally work for an employer, who would pay taxes on that worker. “You’d bring millions of people out of the shadows with that system,” he says.

But given the current political climate, Marek fears immigrants would be very suspicious of a federal ID program such as the one he proposes. That distrust is further eroded by recent state and federal actions, he says.

Last year, Texas banned sanctuary cities after Austin officials said they would ignore federal immigration enforcement measures. In August, a federal judge struck down most of the law except a controversial “show me your papers” provision that compels law enforcement to ask about immigration status during routine detentions.

“I know of three contractors in the last 90 days that have had ICE audits and lost 50% of their labor force,” he says. As a result, he sees many immigrants leaving the state, “not just the undocumented ones, but the legal ones, too. They don’t want the hassle.”


Poor Governance

Arizona went through a similar issue with its “show me your papers” law signed by then-Gov. Jan Brewer (R) in 2010. The law was ultimately gutted in 2016 following a court settlement with immigrants’ rights groups. “We had legitimate companies here who didn’t want to deal with the hassles of profiling, so they moved to other states,” says Ricardo Carlo, president of the Associated Minority Contractors of Arizona.

Compliance has been a major issue for employers who lack professional help to scrutinize employee paperwork.

“[Workers] were coming in with what appeared to be legitimate IDs and social security numbers, yet they were illegal, and some companies got caught,” he says.

Adds Carlo: “We’re not a policing agency in this industry. If we have someone who comes in [with] the I-9, has a social security card or a work permit, and everything passes, as far as we know, that person is fine.” He says members want the H-2B visa program expanded in construction.

Executives of two northeast contractors claim they’re in compliance on immigration but admit they are less sure of their subcontractors’ track records in hiring undocumented workers. “When labor shortages come into play, [subs] will go to sources to obtain illegals,” admits a New York City open shop building firm CEO. Adds a heavy-construction firm chief: “We work hard to make sure we follow the federal guidelines and that I-9 forms are legit. I don’t think we have any illegal workers, but it would be naive to think that we have taken care of all the people.”

“I could hire 500 people tomorrow if they had an I-9 [employment eligibility verification form].”

–Stan Marek, CEO, Marek Bros., Houston

Union officials and contractors note the challenges they face in being unable to recruit undocumented workers and in competing against firms that do. One New Jersey union official says, “with the shortage of skilled workers, we would love the opportunity to talk to these people and give them benefits, but that policy will be settled 350 miles from here.” A report state building trades commissioned two years ago claimed New Jersey's "underground" construction economy, fueled by off-the-books hiring, totaled between $528 million and $1.2 billion.

Denise Richardson, executive director of the New York City General Contractors Association, says workers employed on “security-sensitive” projects are subject to background checks, and employers must comply with federal E-Verify requirements.

But on work for private owners and developers, “we have heard anecdotes that competing firms have managed to bring down prices by rotating their labor force using tourist visas as well as an undocumented workforce paid off the books,” she contends.

AGC of California spokeswoman Sophia Taft says the national organization advocates for legislation that does not hold employers accountable for subcontractor hiring and for maintaining the “knowing” standard of liability that allows employers to verify based on set rules. “The government should not play a game of ‘gotcha’ or encourage racial profiling,” states a policy brief.


Fear of Displacement

While the immigration debate builds along with potential new restrictions, workers fear what they stand to lose if they must leave the U.S.

Nelson Hernandez, a Washington, D.C.-area laborer on pipeline projects, who has had TPS designation since 2001, owns a home in Sterling, Va., with his family.

“If I am forced from my home, who pays for that?” Hernandez asks. "I have two vehicles. What happens to [those]? I could lose everything with the [end of] TPS. Politicians have the power to fix this.”

Mauricio Flores, a laborer in Manassas, Va., says he has paid as much as $35,000 annually in taxes. “We bring a lot of money into the economy. We pay a lot of taxes that will go away. I also pay social security. I will lose all of those benefits,” he says. “Nobody wants to go back. We’re doing something good for this country.”

A big concern among unions and employers is that many legal workers will simply not leave but will disappear into the shadows of the illegal immigrant workforce.

“I would more likely see them stay illegally than go back to a country with no opportunities and a dangerous situation,” says union official Desmond.

But laborer Flores says, “I’m working legally. I don’t want to work illegally. I would lose everything.”

Texas forecaster Perryman says that trend would hurt the state's Hurricane Harvey recovery, while Ken Simonson, AGC chief economist, says it would negatively affect demand for construction, with loss of wage-earning residents eroding state and local tax bases, retail sales and other building generators.


The Education Front

Supporting DACA-protected student populations has also become a cause célèbre in academia, with protests erupting across many campuses in recent months and schools covering financial and legal costs for affected students, particularly in STEM fields.

A coalition of 19 Ivy League and other universities filed lengthy friend-of-the-court briefs to the federal courts that ruled on challenges to the program.

“We have been clear that the Institute will do everything legally possible to protect DACA students regardless of the program’s ultimate fate,” said Cynthia Barnhart, chancellor of the Massachusetts Institute of Technology, one of the amicus filers. She also is Ford Foundation professor in the school’s civil-environmental engineering department.

In a March 1 school-wide online letter Barnhart wrote: “MIT police have a longstanding practice of not inquiring about individuals’ immigration status, and our officers are not responsible for enforcing federal immigration law.”

“We will do everything legally possible to protect DACA students regardless of the program’s ultimate fate. [MIT police] are not responsible for enforcing federal immigration law.”

Cynthia Barnhart, MIT chancellor and civil engineering professor

photo by Dominick Reuter, MIT

The DACA legal reprieve now allows more time for a legislative fix.

AGC’s Young says that settling the Dreamer debate is a necessary first step before other immigration issues can be considered. But, he says the issue may get sidelined until after the November midterm elections.

For TPS, meaningful extensions would be a tough fight since the program “is, by definition, temporary, so that’s a hurdle,” Young says. “Asking Congress to make something temporary into something permanent? We get pushback there.”

Young hopes for a compromise that would allow TPS holders to continue to work in the U.S., but without permanent residency. AGC and other groups have long pushed for expanding guest-worker visas to help construction firms bring in more trades.

“There are short-term visas for low-skilled and seasonal [workers], and there are high-skilled [employee] visas, but nothing for the traditional craft worker,” according to Young.


Trump’s Game Plan

Trump proposals are raising concern for the future of the construction workforce pipeline, with intentions to restrict who can qualify for visas such as the H-1B, used for high-skilled engineering and other professional jobs, and Optional Practical Training (OPT) that allow international post-grad students to work up to three years in the U.S.

A report by the National Foundation for American Policy, an Arlington, Va. think tank, says the number of international graduate students enrolled in engineering and science programs at U.S. universities declined 6% between 2016 and 2017 and 21% for students from India, based on government and other data and its own analysis (see chart, above).

NFAP Executive Director Stuart Anderson, a former Immigration and Naturalization Service policy officer under President George W. Bush, cited both U.S. policy and “student perceptions” for the recent decline.

Several engineering school officials say, so far, they haven’t seen a crimp in the international grad student pipeline.

But Fernanda Leite, associate engineering professor at the University of Texas-Austin cites up to a 20% drop in [non-U.S.] graduate student applicants, saying “we think people are afraid of what will happen.” Leite, a Brazilian native who obtained post-graduate U.S. training through then more-easily gained OPT and H-1B visas, says current students “are worried these will end.”

The trend could hurt “the quality of the applicant pools for faculty positions,” says Anderson. “The dynamic is very negative if this becomes longer term” and more disruptive to operations of smaller U.S. engineering schools with larger non-U.S. student pools.

Related to the potential OPT changes, Anderson says “those extra months of work are considered an important part of a student’s education and can make a big difference in whether or not the student is able to get a visa later.”

Adds Leite: “We see students struggling to get jobs because companies don’t want to invest in getting visas.” That, and possible OPT restrictions, are fueling reluctance for U.S. study. “People who would come over are looking long term. Study is expensive, and they want to know they will be able to work after graduation,” Anderson says. “They may decide it’s not worth the risk. Uncertainty can be damaging.”

Employers worry about further visa curbs and slowdowns in processing, although several industry visa-seeking firms contacted declined to respond or speak on the record.

“We are trying to grow by 30% this year and need people to accomplish this,” says a contractor executive. “We are reaching out on a global basis to recruit engineers and project managers and have had success in finding them. But if we can’t get visas in a reasonable timeframe, we would simply have to back off acquiring work.”


Chilling Effect?

Future potential employees are watching the trends with optimism and pragmatism.

“One of the main strengths of the U.S. is its diverse-minded people who push boundaries together,” says Egypt-born Michael Ibrahim, a PhD civil engineering candidate at the University of Wisconsin-Madison. “My biggest concern is the risk of hindering that process.”

But another student there notes peers from Middle Eastern countries on and off the Trump target list who now are weighing contingencies. “I know many people with a solid plan B who didn’t have one before,” he says. “That includes seeking work in Canada or Europe.”

For asbestos worker Lorena Berrios and her family, a forced departure from the U.S. to El Salvador could be bleak with that country’s limited employment and continuing violence.

But she emphasizes that the loss of immigrant workers will also be painful here, in how well America’s booming infrastructure mission and other construction needs are executed with an already too-stretched workforce.

“If we are forced to leave, the industry will pay a high price,” Berrios says.

Additional reporting by JT Long, Louise Poirier, Stephenie Overman and Mary B. Powers

Source: www.enr.com