A Thin Line: Immigration Compliance

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...