Paperwork and Legal Employees

Farm Business Management Update, February - March 2009

By Bill Whittle (wwhittle@vt.edu), Extension Agent, Farm Business Management, Northwest District

The agriculture industry often has difficultly locating and retaining quality employees. The farm owner/manager along with other managerial duties usually is also the Human Resource Department and must handle the hiring of employees, and the associated paperwork. One piece of paperwork that is an absolute must for any business to properly complete and maintain is Form I-9 from the US Citizenship and Immigration Services of the Department of Homeland Security. The Form I-9 verification process ensures that employees possess proper authorization to work in the US and that hiring practices do not unlawfully discriminate based on immigration status.

US employers are required by law to verify that all workers hired on or after November 6, 1986, regardless of immigration status, are authorized to work in the U.S. This is accomplished by completing and maintaining Form I-9 on each new employee hired after November 6, 1986. This includes citizens and non-citizens, full-time and part-time employees, minors, uncle and sister. Everyone! The length of hire does not matter, whether it is one day or 30 years. There are no exceptions for not having a properly completed I-9. The employer is the person responsible for ensuring that the Form I-9 is completed and retained for every individual hired.

Rev 06/05/07

Employers must use the most current version (as of 1/31/09 Rev. 06/05/07) of the I-9 when completing the form with new-hires. The latest version is available at http://www.uscis.gov/i-9. Employers are not required to update an I-9 on long-term employees just because the version changed. If a long-term employee quits or is terminated, then a new I-9 must be completed if rehired.

Form I-9 must be maintained in the employer’s possession. It should not be sent to the USCIS. However, the form must be available for inspection by authorized US government officials (e.g. Department of Homeland Security (DHS), Department of Labor (DOL), and Office of Special Counsel). An I-9 must be kept on each employee for three years after the date of hire or for one year after employment is terminated, whichever is the latest date.

Form I-9 is a four page document. The first two pages are instructions, the 3^rd page is the Eligibility Verification Form consisting of three sections that must be filled out and the 4^th page is the List of Acceptable Documents.

Important points:

1. Employer is responsible for having the I-9 properly completed in the allotted timeframe and for maintaining the record.
2. Employer must give employees the entire I-9 at time of hire.
3. Employee must fill out Section 1 of the Eligibility Verification Form when hired.
4. Social Security Number for the I-9 is voluntary unless the employer participates in E-Verify.
5. Employers cannot specify the documents they will accept as long as the documents are listed on the List of Acceptable Documents for the current I-9.
6. Employees must present original documentation (no photocopies). After physically examining the documents, employers must fill out Section 2 within three business days of the date employment begins.
7. It is illegal to discriminate against any individual (other than an alien not authorized to work in the US) in hiring, discharging, or recruiting because of that individual’s national origin or citizenship status.
8. An employer is not required to know with absolute certainty if a document is real or fake, but the employer must examine the original documents and make a good faith determination. The document should: 1) appear to relate to the employee, 2) appear to be genuine, and 3) must be included on the Lists of Acceptable Documents. If a document presented is obviously forged (no specific guidelines on how this is determined) you do not have to accept it, but the anti-discrimination provisions warn employers not to be overzealous when rejecting documents.
9. Form I-9 addresses situations when a translator is used by the employee in filling out the form, when a minor is hired for work, and for an employee whose work privilege has an expiration date.

Employers who hire or continue to employ individuals knowing they are not authorized to be employed in the US, or who fail to comply with employment authorization verification requirements may face civil and in some cases criminal penalties.

The US Citizenship and Immigration Service (USCIS) website at http://www.uscis.gov offers complete information on the I-9, how to determining employee eligibility and use of the E-Verify system. Instructions for completing the I-9 are provided in great detail in the Handbook for Employers: M-274 (http://www.uscis.gov/files/nativedocuments/m-274.pdf).

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