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A Thin Line: Immigration Compliance
Jan 10, 2011
With workplace audits an Obama priority, complying with immigration laws presents significant challenges for employers. Here are valuable I-9 pointers from a labor attorney who works regularly with dairies on immigration laws.
By Anthony P. Raimondo
MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
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.
NEXT: Handling Social Security Mismatch.
Based in Fresno, Calif., Anthony Raimondo is a labor attorney specializing in agricultural labor issues, primarily in the dairy industry. He counsels farmers on legal compliance and labor relations strategies and defends them before courts and administrative agencies. He has run counter-organizing campaigns against the country's most aggressive agricultural unions and has negotiated favorable contracts for unionized employers. He is also the primary labor resource for Western United Dairymen. Contact him at (559) 433-1300 or Anthony.Raimondo@mccormickbarstow.com.