Minimize your risk of I-9 problems
The United States Customs and Immigration Service (USCIS) has been increasing its inspections of employee records in recent months to verify employees’ eligibility to work. In New England, Michigan and the Pacific Northwest there have been several inspections on dairy farms that have resulted in fines and loss of employees. The current pattern of action leans toward fining the employers for employing undocumented workers rather than detaining and deporting the employees. This practice results in less net cost for the agency and creates a strong incentive for employers to comply with the law.
So far in Minnesota, reports of inspections have been minimal with action focusing more on other industries than on farms. That doesn’t mean farms can be complacent, however. It only means you have time to be sure your employment practices and documentation are correct.
The target of inspections and the defense of the employer is the “I-9: Employment Eligibility Verification”. The I-9 is a short form the employee and employer completes that verifies the employee is eligible to work in the United States. When USCIS conducts an inspection, they are looking at those same forms to be sure they are properly filled out and can be verified against the employees on the farm or in the business. They will also be looking for any evidence that would lead them to believe the employer knew or should have known that one or more employees was not properly documented as eligible for employment. A recent dairy farm inspection in Michigan resulted in fines of nearly $3 million dollars and three to five years of probation for knowingly and repeatedly hiring undocumented workers.
What are red flags to be watching for in your hiring?
- It is not uncommon for past employees to return for re-employment. If they provide documents with different names or different social security numbers, the flag is waving and you should ask for additional documentation.
- If an employee is the subject of a ‘no-match’ letter from the Social Security Administration, ask for corrected documents from the employee and if they cannot be provided, you need to terminate the employee.
These aren’t the only red flags but are two major ones. These aren’t the only things the USCIS will be looking for either.
Here are several other steps you can take to protect yourself and your business:
- Be sure you have the latest version of the I-9. It can be obtained at http://www.uscis.gov/files/form/i-9.pdf.
- Have all employees fill out an I-9 within three days of employment. Be sure you or your representative view all documents provided (they must be originals) and determine whether they reasonably appear to be genuine. Only current documents are acceptable.
- Have forms for all employees regardless of national origin or citizenship status. Failure to do so may open the business to a discrimination suit.
- Be sure the employee signs the form and dates their signature. The business representative should do the same after recording documents. If an interpreter is used, they also need to sign and date the form. For purposes of interpretation, the form is available in Spanish, but an English version should be filled out, signed and kept on file.
- Be sure to verify the proper documents. A list of acceptable documents is attached to the form. The employer cannot specify what documents they want to see, but they should provide the list to the employee.
- Keep all forms on file. I-9s are not sent anywhere. They are meant to be at the business or a safe filing place. Some businesses keep photocopies of the documents presented. This is not a requirement. If you do keep photocopies, you need to decide where to keep them. The USCIS suggests they be attached to the I-9 and filed together while other advisors suggest they be kept in a separate location. Take your pick; neither is illegal. Keep your forms for at least three years after the hire, or at least one year after the employee has left the business, whichever is longer.
An excellent resource is the Handbook for Employers. It discusses the I-9, gives examples and answers questions about the form and documents. The handbook can be downloaded from http://www.uscis.gov/files/form/m-274.pdf.
While this is by no means all you need to know about I-9s, it is a good start. If you want help, there are attorneys and others specializing in labor and immigration law who are very willing to help for a fee.
For further information on labor management see the University of Minnesota Extension Dairy webpage at www.extension.umn.edu/dairy and look under “Employees”.