Reprinted from Dairy Today: Labor Matters,
January 10, 2011]
Agricultural employers face significant challenges in achieving
compliance with immigration laws. The demographic of available
employees contains a large number of undocumented immigrants, and
employers must take great care to protect themselves from
immigration violations.
It is unlawful for any person or entity to hire an alien for
employment knowing that the alien is not authorized to work in the
U.S. It is also unlawful to continue to employ an alien while
knowing that the alien is, or has become, unauthorized for
employment. An employer has a defense if he or she complies in good
faith with the verification process, typically referred to as the
I-9 process.
In immigration law, "knowledge" indicates not only actual
knowledge but also "constructive knowledge." Constructive
knowledge is awareness of facts or circumstances that would lead a
reasonable person to know about the alien's status.
Constructive knowledge that an employee is not authorized to work
includes, but is not limited to, circumstances where an employer
fails to complete the I-9 form or has information available to it
that would indicate that a person is not authorized to work.
Knowledge that an employee is unauthorized may not be inferred from
an employee's appearance or accent, nor may it be inferred from
mere suspicions or rumors.
Accordingly, the first critical component of immigration compliance
is the I-9 verification process. The current I-9 form was released
Aug. 7, 2009, and expires on Aug. 31, 2012. Too often, I-9s are
completed on "auto-pilot," leading to errors that can
create liability. The I-9 is the strongest defense against
immigration charges, but can only help if it is completed
properly.
1. Employers must complete I-9 forms for all new hires,
including U.S. citizens. The employee must complete
Section 1 of the I-9 form no later than the first day of work, and
if they are given help of any kind, the person assisting them must
sign the Preparer/Translator certification. There is a Spanish
form, but it can only be used in Puerto Rico. The employee then has
three business days to produce documents so that the employer can
fill out Section 2, the document verification section of the
form.
2. Documents must be originals that "reasonably appear
genuine on their face." Employers must provide the
employee with the list of acceptable documents with the I-9 form so
that the employee can decide which documents to present. Employers
cannot specify which documents to produce, such as telling the
employee to provide a drivers' license and Social Security
cards. Requiring more or different documents than are necessary is
"document abuse," a prohibited form of discrimination. If
a mistake is made on the form, do not use white-out or obliterate
the mistake, as this may cause suspicion. Employers are not
required to retain copies of the documents (just the original I-9),
and should not keep copies. All that the copies do is allow the
government to second-guess whether the document really appeared to
be genuine.
3. If an employer has information available to it
indicating that an employee is not authorized to work, there is a
duty to inquire further about the employee's status.
If an employer receives a mismatch notice and the employee used a
Social Security card for verification, it should re-verify the I-9
without using the questionable Social Security number (SSN) if the
employee cannot verify the accuracy of the SSN. (My next article in
this series will discuss SSN mismatch issues in detail.)
4. Employers must understand their obligations to update or
re-verify expired documents. Expired documents are never
acceptable for an initial verification. However, only certain
documents will require an employer to update the I-9 upon
expiration. The key is whether the underlying authorization to work
expires along with the document. For example, if the employee
provides a temporary work authorization document, then the I-9 must
be updated when the authorization expires. However, if the
expiration of the document does not indicate an expiration of the
right to work (expired passport, Permanent Resident Alien card, or
driver's license), then there is no need to update the I-9 when
the documents expire.
The Obama administration has made workplace audits a priority in
its immigration enforcement policy, and has been auditing
agricultural businesses, including dairies. In an audit, the
government will run all documents through databases to verify
immigration status. If undocumented immigrants are discovered, the
employer's only protection is a properly completed I-9 showing
that it lacks actual or constructive knowledge of the
employee's status.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.