Accurate I-9 forms are more vital than ever
When Blair Babcock, an agent with the Department of Homeland Security's Immigration and Customs Enforcement, spoke to attendees of the West Michigan Ag Labor meeting Feb. 15, he was running a little late. He was out that morning on an audit, and being I-9-compliant was fresh on his mind.
"I have bad news," Babcock told his audience of growers. "With this being an election year and immigration reform in the news, there is added pressure on compliance coming down from the top."
The pressure comes in the form of increased audits. Higher-profile candidates for audits are sure to get one, he said, and ag is very high-profile. Growers with any sort of complaint on the books are almost assured of getting a notice, as are operations with large numbers of employees.
The process of an audit remains the same, Babcock said. The business owner will receive a notice in the mail. There will be three days to respond with payroll records and the Employee Identification Number. It can take anywhere from one to five months to verify I-9s and finish the audit.
"Usually, no matter how hard you try, you'll end up getting a notice that you have items that need to be fixed," Babcock said. "That's not the end of the world, but know that fines are now based off the number of errors on the I-9s. Having more than 10 percent errors makes you eligible for a fine."
One of the most common notices is Notice of Suspect Documents, which means that the person listed on the I-9 may have fake documentation, or may have either been the victim or perpetrator of identity theft. That doesn't mean the person can't work for you while they sort out the issue, Babcock said. E-Verify doesn't always weed out identity theft issues either, but it usually can in smaller work forces.
If you receive a Notice of Unauthorized Alien, they cannot work for you and must be immediately terminated. Immigration authorities will begin the deportation process, Babcock said. Also, if their employment authorization runs out, you must put them on unpaid leave until they get the issue resolved.
Filling out an I-9
You can still use the Spanish-language I-9 as a translation tool, but you must have an English I-9 on file and for audits, Babcock said. The current version is form 87-I-9.
To fill the form out properly, there are several things to keep in mind. Under Section 1, the worker's address is to be used. It can be their winter address, but don't let them use your address unless they are living there full time. The person must have a valid Social Security Number for E-Verify. He or she must check only one box from the appropriate list that states citizenship, and they must fill in the appropriate blank, Babcock said.
"Where the form calls for the preparer, if you have to make a bunch of changes or corrections, you are a preparer," Babcock said. "You're still not legally liable for errors made by the person listed on the form, but you do have to sign and date it."
The employee must also provide documentation. There are several acceptable forms of documentation and they are listed on the I-9 form. They can have one item from List A, or one from each of List B and List C, Babcock said.
"Don't ask for a specific document from the lists," he said. "Any valid document from the lists is acceptable, but they must be valid and current. Asking for anything in specific is just opening yourself up for trouble."
Putting the date of hire on the form is also very important, but use the date that the I-9 form was filled out. Don't ever back-date a form, Babcock said.
"If you're late, you're late. No one ever went to jail for a late I-9, but try to back-date it and it's another story. And use the date you saw the employee's documentation."
Babcock added that if you have to redo an I-9, that's OK. Just staple the damaged or old form to the new one so there is a record of cause.
Babcock also warned of employees asking how they can get good documentation. If you have prior knowledge of illegal status, you open yourself up for serious problems, he said.
Employers must have an I-9 on file for themselves, too, he said.