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My farm for a form

Ben Yale Published on 22 March 2010

King Richard III, as many such monarchs do, made many enemies. Over time, one, Henry, gathered enough supporters and challenged Richard for the throne of England. Their forces met near Market Bosworth. While Richard’s forces outnumbered Henry’s, in the midst of fierce fighting, Richard is dehorsed. Shakespeare, in one of his greatest plays depicting this historic scene, has Richard cry out, “A horse! A horse! My kingdom for a horse!” He gets no horse, he is killed and the kingdom lost, for want of a horse. Legend says his crown was retrieved from a nearby hawthorn bush and delivered to Henry, who became the next king of England, Henry VII, father of the more famous, Henry VIII.

Though in general in the scheme of things, one horse among thousands in the kingdom, but in the midst of battle, thousands of horses mean nothing, but just one, the right one, in the right place, and ready for battle, means everything.

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Dairy farmers coast to coast and border to border have been in a great battle to retain their own kingdoms, their dairy farms. Caught month by month between too little income and too many bills, it has been bloody, leaving many dairies in seriously weakened situations. But as important as money, or the lack of it is, there are other areas which have the potential of bringing the final blow to the dairy.

Dairies operate because of people. Successful dairying means having good, well-trained people, doing their job. Based upon studies, it is estimated that 60 percent of agricultural labor is performed by aliens. Based upon other studies, it is estimated that significant numbers of those aliens are not authorized by law to be employed. It is likely that on any given large-sized dairy in the U.S., there is one or more aliens unauthorized to work. This could be true for your dairy.

The bad news is that it is a criminal offense to hire an alien not authorized to work in the U.S. Penalties can range from moderate to serious. Fines, prison time and litigation expenses associated with that are in the cards for those who violate the law. That does not include loss of good employees.

The good news, is that hiring an illegal alien is not, alone, illegal – it is knowingly (and that is a key legal term) employing that alien that exposes the owner to liability. Proving a negative, that is having no knowledge, is impossible. But Congress has provided one means of legally establishing the absence of such knowledge – the employment verification process, or, as we know it, Form I-9. Simply stated, if the dairyman employer performs the I-9 process in good faith and it later turns out one or more of the employees are illegally employed, the employer is not subject to sanction; though the same does not go for the employee. The concept being that if the employee provides false documents to the employer, it is the employee, not the employer, who should be punished.

The Form I-9 process continues to be the bulwark that protects dairymen from criminality in hiring. But such is not viewed popularly and even politically in a positive way. The challenges have gone from verbal rants to legislation. A growing number of states no longer define “knowingly” in the same way and require the use of E-Verify, an online verification of documents. Most states still follow federal law, but there are exceptions.

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In this war between those who need quality labor willing to work in agriculture to feed our nation and those who see any immigrant labor as a threat to the nation, many battles rage throughout our country. We have heard the stories, such as in South Dakota, where federal officials raid farms. Commandos sweep onto the farm, disrupt the feeding and the milking of cows, arrest some employees, scare away the rest (legal and otherwise), leaving thousands of cows crying to be fed and milked and no one there.

The good news is that these raids, under the current administration, have stopped, at least for now. It is not all good news, however. Instead, Immigration Control and Enforcement (ICE) is now auditing employers’ compliance with the Form I-9 process.

While this process is a whole lot less dramatic, one government official, the unarmed postman, delivers a certified letter with a demand to supply the I-9 records for review. This still will be a major battle for the dairy farm. This Notice of Investigation or NOI, will require the company to deliver all I-9s, list of all current and former employees (last three years) and all their social security numbers. (Notice the emphasis on “all.”)

If you get one of these, you have all of three days to respond. How easy can that be? The I-9s were done when the employee was hired. All of them? They were completed correctly. All of them? They are easily gathered. All of them? The battle has been defined – how complete has the performance been?

The importance of compliance with Form I-9 cannot be overstated. Every employer is required to complete such a form for every employee, correctly. No exceptions. Each failure to comply is a separate violation of law and a violation can occur even if all employees are in fact legally authorized to work. Failure to timely obtain, maintain and deliver Forms I-9 timely has its consequences. DHS can fine an employer $100 to $1,100 per I-9 not completed. Combinations of missing, incomplete or erroneous Forms I-9 can show lack of good faith compliance with the employment verification. Loss of the good faith defense means the loss of the primary defense in charges alleging hiring unauthorized aliens. Thus if the audit finds that the I-9s were not completed correctly and there were in fact unauthorized aliens working for you, the civil fines can increase substantially, and you could be subject to criminal penalties including imprisonment. You have been thrown off of the horse.

To keep that from happening let’s look at some simple steps that need to be done now, long before the three-day notice. The beginning of this understanding is to take as a fundamental truth: The Form I-9 is an essential process to the maintaining of your business. Although it happens when a person is employed, Form I-9 is not an employee record; rather it is the defining record of your compliance with immigration law. The form, by law, cannot be used for any other purpose.

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As a consequence, I-9s should never be in the individual employee file. They should be kept in a single binder readily obtained to show compliance. This is the first thing to do. If you do not already have such a notebook, build one labeled “Forms I-9” or the like. Completed correctly, this is what would be needed for an audit. A second notebook, which contains copies for a tickler system of follow up for re-verification or other maintenance, is for you and not for submittal to the government.

The I-9 notebook is simply created. Include a list of all employees who now work for you, or will receive a W-2 for this year or received one for any of the last three years. The list should include in addition to their name, the date of hire, date of termination, and Social Security number. All of the original Forms I-9 should be in the notebook ordered as you can find easily (generally alphabetically). The forms include the complete Form I-9 signed by the employee and employer, any prior forms for the employee and, if you make them, copies of the documents should be stapled to the main form. The law does not require that copies of documents presented be kept with the Form I-9. If you do it, then make sure it is done for every employee.

Match the employees on the lists with the I-9s. If there’s no I-9, immediately complete the employment eligibility process for current employees. Do not back-date the signatures. If no longer working for you, it is too late for those former workers.

Now review each of the I-9s, making sure that all information is entered and all signatures and dates are in place. If there is information missing, the choices are to correct or to fill out a new form. If you correct, do not use whiteout, but line through errors and correct above the error. If the change is to Section 1, the employee must initial and date the changes. If the error is in other sections, then the person who signed for the employer must initial and date the corrections. The law is very clear: The person who actually held and viewed the documents and filled out Section 2, and no one else, must sign on behalf of the employer. It is not compliance to have one employee, such as a clerical employee, fill out Section 2, look at and note the documents but submits the form to someone else who has done neither to sign. That is not compliance with the law. From here on, only the employee who sees the documents is to sign. If this is not what has happened, review it with an immigration law attorney.

If a new form is filled out, use the most current form and attach prior forms to the corrected one. The form must be current as of the time of hiring. The form date is at the bottom right of the page. The most current form is dated “8/09/09.” The current form can be downloaded at www.uscis.gov/files/form/i-9.pdf . Completed Forms I-9 can only be viewed by specific Department of Homeland Security or Labor officials, and cannot be shown to any other person or even governmental official without a proper order. Check with your lawyer if someone else asks.

Armed with this notebook with Forms I-9 for every employee, correctly filled out, and updated every time you get a new employee, you are ready to ride to battle. In the scheme of all the important tasks on a dairy farm, how insignificant it all seems – a simple form, the 10 minutes or so needed at time of hire to fill it out and a few more minutes to put it in the notebook. It is done hundreds, maybe thousands of times. But your horse is not in those numbers, it is only with a completed notebook. Complete your notebook, ready your horse. I hope we never hear, “A Form! A Form! My farm for a Form I-9!” PD

Ben Yale
  • Ben Yale

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  • Yale Law Offices
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