What to know about immigration compliance and I-9 forms
Attorney Anthony Raimondo wants dairy producers to be clear about employment laws and immigrant labor.
"They need to be taken seriously," he says. "The undocumented worker is not the only one at risk."
Speaking at Dairy Today’s Elite Producer Business Conference in November, the California-based attorney shared information on U.S. Immigration and Customs Enforcement (ICE) employment policy and requirements. According to Raimondo:
- It is unlawful for any person or entity to hire, recruit or refer for a fee an alien for employment in the U.S. with the knowledge that person is not authorized to work here.
Bonus Content: More on I-9 Compliance
> Anthony Raimondo's presentation
> En Espanol
- It is also against the law to continue to employ an alien with the knowledge that person is, or has become, unauthorized for employment.
- An employer has an affirmative defense if he or she complies in good faith with the verification process set forth in the statute, or I-9 process.
- "Knowledge" indicates not only actual knowledge but also "constructive knowledge": the awareness of facts or circumstances that would lead a person exercising reasonable care to know an employee is not authorized to work—for example, an uncompleted I-9 form, or allowing another individual to introduce an unauthorized alien into the work force.
- 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.
I-9 forms must be filled out correctly by dairy employers:
- Section 1 must be filled out by the employee before performing any work. The preparer/translator certification must be signed by anyone who assists. The employee is not required to provide a Social Security number.
- Section 2 (document verification) must be completed within three business days of starting work. Make sure all new hires are provided with a copy of the list of acceptable documents shown on the back of the I-9 form. The same person who sees the documents must sign the certification. Record all document information.
- Documents must be originals that "reasonably appear genuine on their face." If so, they must be accepted. Employers cannot specify which documents to produce. "All new hires must be given the list of acceptable documents," Raimondo emphasizes. "You cannot require an employee to provide a Social Security card."
Dairies should carefully verify the documents submitted by employees, Raimondo advises.
- Make sure the employee presents original documents. "Copies are not acceptable," he says.
- The law does not require you to copy employee documents. "If you keep copies, you are giving ICE an opportunity to second-guess your judgment on whether the document appeared genuine, except that ICE will be looking at a copy when you were looking at an original," Raimondo says.
Copies are often of poorer quality than originals, and may not look the same. "Whoever fills out the I-9 for the employer has to certify that the documents appeared genuine under penalty of perjury, and that is enough," he adds.
Employees must produce one document from List A, or one from List B and one from List C.
"Make sure you know the difference between them, and the purpose for each," Raimondo says. List A documents prove identity and authorization to work. List B documents prove identity only. List C documents prove work authorization, but do not show identity.
Don’t worry about errors, typos and Wite-Out—let your mistakes be seen. "There is no reason to
make ICE suspicious about what you might have blacked out," Raimondo says.
Common Document Examples
List A documents show identity and authorization to work. "This is all that’s needed," says attorney Anthony Raimondo.
- U.S. passport
- Permanent Resident Alien Card (I-551)
- Foreign passport with I-551 stamp
- Temporary I-551 immigrant visa with photo—must be reverified on expiration
- Temporary Employment Authorization with photo (I-766)—must be reverified on expiration
List B documents show identity only.
- Driver’s license (including Canada)
- State-issued ID card
- School ID
- Military ID (or other federal ID)
List B documents for minors:
- School report card
- Medical record
- Mexican consulate ID is not acceptable
List C documents show work authorization only.
- Social Security card (cannot be laminated)
- Certification of foreign birth (must have a raised seal)
- Certificate of birth abroad
- U.S. birth certificate (must have original seal)
- INS citizen I.D. cards (I-197 and I-179) are no longer issued but are still valid
"Make sure you sign and date in every place that is required," Raimondo says. "Did the employee date his or her signature? Does your certification have the first day of work? Did you date your signature?"