What Contractors Should Know About Hiring Undocumented Workers: A Conversation With Immigration Attorney Jorge Molina

To say nothing gets built without labor is an understatement, and this is particularly true as we watch the Inflation Reduction Act (IRA) come into play. Since the IRA provides credits and rebates for families and businesses looking to lower their property’s energy use, we’re going to see an increase in demand for construction and the labor contractors will need to get the job done — particularly in industries such as insulation. However, with a current labor shortage that will only get worse over time, contractors will find themselves relying more and more on hiring undocumented and documented immigrant workers.

According to Forbes, over 40% of the U.S. construction workforce is expected to retire over the next decade. However, as of 2022, the construction industry was already facing a workforce shortage, according to Associated Builders and Contractors. Dealing with a dwindling workforce and increase in demand — especially over the next ten years under the Inflation Reduction Act — means hiring undocumented and documented immigrant workers. In March 2021, immigrant workers accounted for 24% of the construction workforce nationally, while in some states, that number is closer to 40%.

For insulation contractors, it is likely you currently work with immigrants, or will hire undocumented immigrants in the future. We discussed advice and best practices to protect your immigrant employees with immigration attorney Jorge Molina of J. Molina law firm out of Fort Worth, Texas. We’re talking about immigration, the law, hiring undocumented workers, and what you can do to help yourself and your employees.

Podcast Transcript

[00:00:00] Ken Allison
To say nothing gets built without labor is an understatement. But according to Forbes, over 40% of the US construction workforce is expected to retire over the next decade. Now the construction industry faces a workforce shortage, according to Associated Builders and Contractors of 650,000 in 2022. And that was before we passed the Inflation Reduction Act. Obviously, this means every worker is critical. The ones we have now and the ones we hope to find, and that includes the ones that came to our country looking for work. The fact is, without the immigrant and migrant population that comes here seeking work, our problem would be much, much bigger. In some states like California and Texas, reliance on foreign born labor comprises close to 40% of the construction workforce. I was surprised by that. Nationally, in March of 2021, immigrant workers accounted for 24% of the construction workforce. For many insulation contractors, they make up a lot of their team. In fact, some of them may be the key people that keep your operation going. If that’s the case, what are the best practices to protect them, to protect your company or to protect you?

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[00:01:56] Ken Allison
Welcome to the R-Value Podcast, where today we’re talking with attorney Jorge Molina and the J. Molina law firm out of Fort Worth, Texas. We’re talking about immigration, the law, and what you can do to help yourself and your employees. Jorge, welcome to the program! I see you started your firm in 2017. What made you choose immigration law?

[00:02:21] Jorge Molina
Well, Ken, thank you for the invitation. It’s a pleasure being with you. And immigration law sort of picked me. You know, I feel I have a natural proclivity. I was born in California, but my parents decided to raise me in Nicaragua. So when I moved to Texas in 2006, I sort of felt like an outsider, as an immigrant almost even though I am a U.S. citizen. So when I was in law school, immigration law was of high interest to me. And I really like the challenge, right? So careful what you wish for! This is a really challenging area of law. So that’s where, you know that’s how I got into the immigration law field. And along the way, I’ve got some tremendous mentors and I’ve been with some good people, too.

[00:03:12] Ken Allison
What type of help do most people come to you for? Are they trying to get green cards or accepted into the country or bring in family? What’s the majority of what you do?

[00:03:22] Jorge Molina
Well, all of the above and then some. So, we’re a fully focused in immigration law. So, we serve all immigration law needs. So, from people trying to bring in their girlfriends or their family from abroad, or if you’re fighting deportation, or if you’re fighting the federal government to make sure that they do their job, or if you’re an employer, you either want to bring more workers to your business or you want to make sure that the workforce that you have can stay in the states. We can do all this work.

[00:03:55] Ken Allison
If I’m an employer trying to help one of my best people get citizenship, is there anything I can do to help them?

[00:04:03] Jorge Molina
A fantastic question, Ken. And by the way, we get this question… I would say every week. Every week we have employers for whether it’s because they want to help the individual or it just makes good business sense. They want to make sure that they, that they can have this employee in their company for the long term. So often we get these questions as you know, “how can I help this person”? And there’s different categories. So, the more common one is the employer has an individual who is undocumented, and they want to help them out, right? Make sure you can get a work permit. You can become legal in the States, get you Social Security numbers, things like that. And unfortunately, the way that our laws are written and there were designed, an employer has very limited things that they can do in that situation. If you’re here undocumented, you can’t change to an employment-based category. Therefore, you need to leave the states. But if you’ve been here for over one year, you can’t come back for ten years unless you can get a waiver. And only people who are married to you US citizens or lawful residents or have parents that are US citizens or lawful residents would be eligible. So unfortunately, many cases we need to say, well, you know, I hear you. I wish you could help out. You have the intent, and the proclivity, and the inclination to help them out. But unfortunately, there’s nothing we can do at this point. Some others are just trying to prove that they have a stable workforce, right? And they’re they come to us and say, you know what, I’ve been trying everything. I advertise it online, I have newspapers, my Facebook page. I just can’t find enough people. Help me out! Right? So those people, you know, we’re able to help and bring them… Help them bring the workforce that they need and also does depend on the project that they need the help for. And then we also have other individuals that they know that someone is in the country for a very long time, that they have either a green card or work permit. And they just they’re trying to make that green card or work permit more permanent, and they want to see if they can apply for citizenship. And, you know, it’s always a great feeling when, when you have the employer and the employee together and they’re trying to achieve the same goal.

[00:06:39] Ken Allison
When you look at that, I know there’s this long path and we’ve talked in the past about the number of judges available. Can you talk about the number of judges versus the caseload that we have out there? And what you see typically for, you know, time that you’re here before you actually wind up completing your case?

[00:07:01] Jorge Molina
Okay. Great, great question. That touches in several aspects of the system, right? And this is just one example of how archaic or you know, unworkable our system is in 2022. So here are the numbers. There is approximately over 1.6 million cases pending in immigration court. Now, there’s only about 500 immigration judges around the United States. Now, I’m not really a numbers guy, but if you run the numbers, it’s going to take you over ten years just to take care of that backlog. And by the way, every day they’re adding more and more and more and more cases. So, to answer your question, you know, I don’t know how long the average case takes, but the federal government, I think that not even the federal government knows how long it takes. And it also depends on where you have your court, whether it’s in San Francisco or Houston or Dallas. You know, they have different numbers. The backlogs are different. And you know, usually the bigger the city, the bigger the backlog. But it also depends on the state and who you’re working with. If you have an office of DHS that’s willing to close out some cases that are not that should not have been in immigration court or if they’re just trying to deport anyone that’s within the system. So it really does depend. But anecdotally, I can tell you, you know, from the from the moment that your case is file in the immigration court to the to the resolution period, maybe about 5 to 7 years. But this is just one aspect of the immigration law system. This is these are individuals who, for one reason or another, they end up in immigration proceedings or excuse me, deportation proceedings. And so, it could be because they you know, they made a mistake. They committed a criminal act, and they ended up in jail and that they were picked up by ICE. Or it could have been an asylum seeker who was refused by immigration authorities. So, I’ve even seen cases where people come in as students, they didn’t pay a fee and then they’re referred to immigration court, and you know, it seems pretty extreme. But yeah there’s, there’s, there’s a lot of, of reasons why you can end up there.

[00:09:46] Ken Allison
So, when you look at you know, they may have five, seven, in some cases ten years. Okay. With them pending for so long, what should someone do while they’re waiting for their case to come up?

[00:10:01] Jorge Molina
First, If your case is pending in immigration court, most likely you’re going to be eligible for work authorization. Ok, so if you’re in immigration court and then you pass that, that first stage where they’re determining that, well, you know, there is some form of waiting, you very likely you can request work authorization. So first, if you’re eligible request for work authorization. Second, and importantly, and just thinking about the end result, right? And what you’re trying to show and I don’t really want to get into the minutia and all the details and stuff, but in essence, in every case, you need to show that you deserve the benefit that you’re seeking. So, you need to show the judge that you’re doing your part. And one of the best ways of doing this is filing taxes, right? So, you know, regardless of your immigration status, it is a duty of every individual who earns income in the United States to file a tax return. Second, show that you’re you have connections, and you have roots in the United States. So how do you show that? Right? So maybe you go to a church or you’re a member of a club, society association, something like that, where if you’re giving back to your community, say you know, you’re part of a charity organization, something like that, make sure to document that those things. And by documenting, I mean, you know, get letters of support, get photographs, show donations, activities that you’ve done if you’re involved in your children’s lives or your nieces and nephews or you’ve held your neighbor right, make sure you have a way of showing that. So those, those are some things to, to prepare. Each case is different, but those are some things that we can all do to show that you deserve that benefit that you’re seeking.

[00:11:52] Ken Allison
I love that, you know, coaching baseball or otherwise. When we first talked about this, I went and I looked up something and I found the most interesting statistics today. It’s from American Progress says each year, undocumented workers in their households pay 12.9 billion in federal tax contributions, 7.7 billion in state and local taxes. They spend 60.7 billion a year. It’s incredible! It says these workers or the… the employers annually contribute payroll taxes totaling 4.4 billion to Social Security and Medicare. And then lastly, they said undocumented immigrants working in the construction sector own 393,000 houses, paying 3.6 billion in mortgage payments and 11.6 billion in rental payments annually. They are a contributing force no matter how we look at it. They are here providing economy. So, I think that’s great.

[00:12:57] Jorge Molina
Umm here’s another thing to consider. Those who are undocumented that are paying into the system cannot receive any benefits from the government. So, there are only putting it in. They’re not going to get it out.

[00:13:10] Ken Allison
So, when you look at that, because we talked before and there are some people out there trying to, I guess, for lack of a better term, take advantage of immigrants. So, you talked about doing it fast versus doing it right. Can you address that a little bit?

[00:13:31] Jorge Molina
Yes, right. So, it’s as in most things in life, Right? So, you can have something fast but likely won’t be that good a quality. Right? And for example, if you’re building a house, you would like to have the best materials and maybe it’s going to take you longer to find those materials and to follow the best practices, but you’re going to have a better house at the end of the day. Same thing here. Often people fall for you know, little offers where someone tells them, well, I can get your work permit right now, umm because you’re desperate for it. And they don’t realize that by filing what they’re filing, they end up in deportation proceedings, for example, or they decide to take the advice or work with someone who’s not a licensed attorney. Tell them, well, you know, you can I can do it for a lot less. And then sort of an expert at doing this. And unfortunately, you know, the wrong help can really hurt. And, and we, we see that. So, you know, as a general rule, just know that for things to, you know, the longer or the stronger the benefit, very likely the longer the process. So, if you’re trying to sponsor someone for a green card to stay permanently in the United States, very likely it’s going to be a process that’s going to take at least one year, maybe even more, maybe for some people it takes over a decade to get that green card. So, before you, you know, start the process, make sure you’re consulting with a qualified, experienced immigration attorney who can guide you to through the process and just be wary of people that just are just interested in taking your money because umm, you know, they’re not really going to help you out in the long run.

[00:15:31] Ken Allison
Yeah, I could see where they would see you as disposable because when you’re gone, you’re gone and they’ve got your money. So that would be terrible. So, for contractors, really, what is the best thing they can do to help the people that work for them?

[00:15:49] Jorge Molina
Ok, so for people that work for them first, you know, pay attention to what benefits there are available. So, for example, if you have a young workforce, right, and they could qualify for DACA, this is the Program for Childhood Arrivals, right? And then you have workers with that. Make sure they’re reapplying for that. A lot of these benefits require you to reapply every year or every two years, right? So that’s very important. Additionally, if someone has a work permit, make sure that they’re renewing it on time. We have a tremendous backlog with immigration right now with renewing work permits, so taking some cases over nine, ten months. So, make sure you’re trying to renew your work permit at least six months before it expires. Additionally, If there’s a program like the new Venezuelan parole program and you have a person from Venezuela or someone related to that and you need workers, you know, maybe this is a program you, you might be interested in sponsoring some workers for your company. Right now, you know, the space is very limited, but this is something you can be looking at. You know, so, in essence, you know, you get power through knowledge.

[00:17:16] Ken Allison
Okay. And so, on the same token, is there anything they should be doing to protect themselves, meaning the employer?

[00:17:24] Jorge Molina
Yes. So first off, you must follow federal and state laws so you do not hire someone who’s undocumented, who doesn’t have work authorization. Now, if it’s a subcontractor and they’re not really working for you, that’s a different story. And you know, we all have our different hiring practices and a workforce. However, if you follow the rules and when you’re following the rules, you’re in a position to help or encourage someone to apply for a benefit that they could qualify for. So, for example, if you if you have a worker that you know is married to, a US citizen, encourage them to file a petition. Often people don’t do it because they think it’s onerous. It’s going to take too long, it’s too expensive, I’m like this. And then so the only do it when it’s an emergency, they have no other option. But if you know someone is in that situation, it could be eligible for something. Encourage them to file.

[00:18:29] Ken Allison
Great. So, along the same line of protecting themselves, you know, what about…. there are times I’m going to need someone to drive a rig somewhere or something like that. I’ve got to have insurance on my vehicles. What about having them drive company vehicles or driving or licenses or things like that?

[00:18:49] Jorge Molina
Okay. So, in 2011, they changed the law in the state of Texas. So, a person who is undocumented, who doesn’t have immigration status is not eligible for a driver’s license in this state. So, you need to be wary about that. Additionally, umm in some circumstances, and it does, it’s up to the discretion of the police officer, they would accept a foreign driver’s license in the state. So anecdotally, just talking from cop to different police officers, you know, I think that there would accept a foreign license for up to one year. But if someone’s really living in the state, you know, that’s not really the document that the police are looking for. However, you are also you could see if someone would be eligible to get a driver’s license in another state. I know that other states don’t have that immigration status requirement. They know states like California, New Mexico, Massachusetts, Illinois, New York don’t require that. But again, you need to follow their rules. Right? So, they, they might not require that, but they’re going to require something else. And most of these states will require proof of residence within the state to show that you can get that driver’s license.

[00:20:13] Ken Allison
As an employer, is there anything that I should avoid or red flags I should look for that are the normal things that you know, hey, you want to avoid that?

[00:20:23] Jorge Molina
Yeah. So first, don’t hire anyone who’s not allowed to work in the United States. Right? So, follow federal law. Follow the standard procedures. Also be aware of who you’re working with. Right? So, if you’re subcontracting matters and things like that, you know, make sure that they’re the people driving the vehicles have the proper documentation and items like that. And importantly, you know, maybe the people who say that are doing the work are actually the people doing the work, because many times we have other names, but its other people doing the work. So those are some things that you can bear in mind and be careful about.

[00:21:09] Ken Allison
So, let’s talk just a little bit about what’s the worker’s goal. One of the things that you said to me at one point really surprised me and that was maybe they don’t want to just disassociate from their home country, which, you know, some of these guys come from incredibly beautiful places. Most of us are attached to where we grew up. So, can you address that as well?

[00:21:35] Jorge Molina
Of course. So, let’s put things into context, right? So, during the 20th century. You know, and while the United States was mostly agricultural. We would import labor from Latin America mostly, and some Caribbean islands, to do work in the United States temporarily. And what it would, how it would work out is that they would come to the United States for certain seasons. So, to harvest strawberries, tomatoes, things like that. And then when the season was over, they will go back to their home country. And this was great because we would have mostly young males coming to the US, doing the work, and then once the season is over, they go back and then they will come back next year to do the work. But this custom was ended approximately in the 1990s when they changed the law and the law became a lot harder to follow. And there are some major penalties if you came to the United States unlawfully. So, the end result about 30 years after the passing of those laws is that instead of having individuals who are here to work and are want to go back home. What you have is family units relocating to the United States because, you know, we’re humans, right? We want to take care of our family, but we also want to have a family. So, what’s the point of just working here and not being able to enjoy our family. So that’s what we’re seeing again. And the reality is it’s immigrating to a new country and often, you know, having to learn a new language where you don’t know many people and you’re starting at the bottom, it is very difficult. So not it’s, it’s not something that’s easily done. So, I think that a good strategy that we can have as a country is just going back to the days where people could come here temporarily. Do the work that is required and then go back home. I think it would be a good way of solving our current labor issues and then for providing good work in the US but allowing these people to go back home and use that money to help their families where they want to be.

[00:24:14] Ken Allison
It makes absolute sense. It’s almost like we became our own worst enemy with a rule that we passed. And while it probably had tremendous intent, what we did was made it where instead of the individual came to your point, the whole family came. And you see a lot of things happen like that in our judicial system. You could have a one-page bill that’s very simple. And this was our goal. But what you wind up with at the end of that might be 1000 pages. And now you know, no one’s really sure that the original intent was made. And so, you know, you brought up the that we could use a very narrow bill to get what we need done. You called it a good neighbor policy. I absolutely love that. You know, give me your thoughts on that.

[00:25:03] Jorge Molina
Yeah. So, Ken imagine if you’re still working with a computer that was designed in the 1980s and that you bought in the 1990s. And you know, would you be able to do your work. Right? So, I don’t think any anyone of us would be able to work with a computer that old. And something similar happens with our immigration laws. Our immigration laws were pretty much thought of in the 1980s, passed in the 1990s. And about 30 years later, we know we know that the system’s not working. However, you know, every bill that has approached Congress has this, you know, very ambitious goal of fixing everything. And, you know, I think we should be more practical and be more narrow in approach. And one of the things that we can do is incorporate business interests into the into the bills. And one of these good ideas is having a and you know, it’s nice to think of it as the good neighbor bill, because it implies two things, right? So, it’s a two-way street. It means that the person coming in needs to act right and earn this privilege. So, act like a good neighbor. And at the same time, we also act as a good neighbor. We make sure that we’re following our own labor laws and rules and that we are working for everyone’s benefit and not trying to take advantage of everyone. So, I think that that is something that could be tremendous, tremendous help for those, at least for the labor shortage that we’re seeing right now.

[00:27:11] Ken Allison
I totally agree. I think it’s one of the only ways to make things fair and equitable. And to your point, you know, a good neighbor is always going to treat you well. They’re going to give you what they’ve promised and things like that. And, you know, it’s really one of those where we need them. To your point, we’ve got to do things that are going to help us get this done. So, in that vein, do you have yourself do you have any resources I know you’ve got a blog and a tremendous YouTube. Do you have resources for contractors looking to help their workers?

[00:27:49] Jorge Molina
Absolutely. So first, you can always come in for a consultation to talk about the individual case and see what your options are. I’m always happy to meet with people and guide you for your specific case. Additionally, like you mentioned, we have the blog and a YouTube channel. And by the way, we’re planning on developing a workshop for contractors because listen… at the end of the day, there’s certain things that are available right now under the law. But this requires if you’re going to be serious about these issues and we’re going to be innovative and smart and find good solutions, we’re going to need Congress to do its job. And unfortunately, we have people in Congress that are more concerned in keeping their job than to leading the way and finding solutions. So, they require nudging and the community’s input. So, one of the things I’d really like to do is just developing a tool. I call it workshop for contractors to how to reach out to their local representative and let them know that this is an important issue, that they would like Congress to help them solve this problem and that this is something important. And it’s not really a matter of politics, but it’s a matter of common sense and being practical about the realities we’re facing. So, we’re working on developing this workshop. It should be available on our website, and it will help contractors and other employers reach out to their members of Congress and ask them to help out in these matters.

[00:29:37] Ken Allison
I think that is a fantastic idea and I cannot wait for you to get it done. In fact, once you do that, Jorge, please let me know. I will make sure that we put that in the newsletter and do what we can to promote it through the industry. I totally agree that the only way we’re going to get representation is to kind of serve it up to them and then hope that that’s kept to a minimal. So, anything are to a minimum, I should say. But anything that we can do to move that forward because of the retirement in the industry, the needs of the industry, I think it’s really important to get that done. And I’ll tell you, I cannot thank you enough for the time that you’ve taken and the information you’ve given our contractors today. I sincerely appreciate it, Jorge.

[00:30:27] Jorge Molina
Well, Ken, thank you for the invitation and it’s been a pleasure. And my regards to the audience.

[00:30:34] Ken Allison
Wonderful. Well, you said it one time on one of our breaks when we were talking, But, you know, it’s just like having oil and never drilling for it. We have a tremendous resource to the south. All we’ve got to do is tap into it. And, you know, I want to credit you for saying that. I really think that’s a very wise statement and decision. So, again, thank you for your time. I hope you all the best. Again, you work nationwide, correct, because it’s federal rather than state law.

[00:31:03] Jorge Molina
Correct. So nationwide and around the world. So, we have clients from around the world and all throughout the United States.

[00:31:10] Ken Allison
Well, we look forward to talking to you again and hearing more about this workshop. And till then, thanks so much. And for all of you out there in R-Value podcast Land, thank you for listening. Thank you for doing what you do for our industry. We’re so glad you’re going out and making a difference every day. Everyone at IDI appreciates you and we look forward to earning your business every day!


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