Catharine Daniels, Attorney, OSUE Extension Agricultural & Resource Law Program

With the arrival of spring, many agricultural businesses may be looking to hire additional employees. Before putting those new employees to work, employers should take time to ensure a “legal” workforce.  One important step is following the Form I-9 Employment Eligibility Verification process.  And with the recent release of a new Form I-9, close attention to Form I-9 compliance is extremely important.

What is the purpose of Form I-9?  The form aims to verify the identity and employment of every person hired to perform labor or services in return for wages or for anything of value that is given in exchange for labor or services, including food and lodging.

Why worry about Form I-9?  Because correct completion of Form I-9 is both a legal mandate and a legal defense.  Federal law requires every employer to complete an I-9 form upon hiring an employee.    Filling out the form is not optional.  Even if the employer knows the new employee, knows of the employee or knows the employee’s family–the employer must do a Form I-9 for the employee.    Once properly completed, a Form I-9 is the employer’s defense against a potential claim of knowingly employing an unauthorized worker.

How does an employer complete Form I-9?  Form I-9 compliance requires completion of three sections, as follows:

• Employers must have every newly hired employee complete Section 1 of the form no later than the first day of work for pay.  Section 1 requests personal employee information such as name, address, e-mail, phone number, date of birth and social security number and requires the employee to attest to his or her citizenship status.
• No later than the third day of employment, the employer must complete and sign Section 2 of the form. Section 2 requires the employer to physically examine documentation presented by the employee showing identity and employment authorization.    There are three lists of acceptable documents; employees may present one document from List A or a combination of one document from List B and one document from List C.  Examples of documents include U.S. passports, driver’s licenses, social security cards and employment authorization from the Department of Homeland Security.
• Section 3 applies to re-verification and rehires.  An employer must complete Section 3 only if the employee is not a U.S. citizen or lawful permanent resident and his or her employment authorization documentation has expired.  An employer may complete Section 3 for employees rehired within three years of the date that a Form I-9 was originally completed, or the employer  may choose to complete a new Form I-9 for the rehired employee.

What does an employer do with completed I-9 forms?  An employer must keep all completed  I-9 forms for all current employees and make the forms available to federal officials in the event of an inspection.  An employer must keep I-9 records for a certain period of time after employees stop working.  This period of time varies; the government provides a chart to help employers identify the appropriate period of time.

Are there penalties for non-compliance?  Yes.  An employee may be subject to civil penalties for failing to properly complete, retain or make the I-9 forms available for inspection.

When is the new Form I-9 effective?  On March 8, 2013, a new Form I-9 was released with revisions. The revised Form I-9 is now two pages long, includes expanded instructions, and has new fields for e-mail addresses, phone number, and foreign passport. Employers should be using this revised form now, but may continue to use the previous Form I-9 until May 7, 2013.

The importance of document inspection.   To avoid liability, the employer should properly inspect the employee’s documents.   The documents must reasonably appear to be genuine and relate to the person presenting them.  The employer’s duty is to verify the documentation; the job of fully “investigating” whether the employee is authorized to work rests with U.S. Immigration Customs Enforcement.  If an employee provides a document that does not appear to be genuine or relate to the employee and the employee cannot present other documentation, then the employer may terminate employment.

Avoiding discrimination liability.  Employers should make sure they do not engage in any discriminatory practices when it comes to the Form I-9.  At the pre-hire stage, an employer may not ask an applicant their citizenship, nationality, immigration status, type of work authorization, or green card status. After hiring the employee, an employer may not request a particular document for the employee to provide to complete the Form I-9; it is the employee’s decision as to what documents they will provide. An employer also may not request more documents than what are required by Form I-9.   Such actions by the employer might result in a discrimination claim.

For complete information about I-9 compliance, check out the “Handbook for Employers – Guidance for Completing Form I-9″ on the  U.S Citizenship and Immigration Services I-9 Central website.