Farm labor update: Tips for employment law & immigration compliance – Kevin Paul, Range PC

The responsibility to ensure your employees can legally work in the United States falls on your shoulders as their employer. Make sure you have the correct paperwork to continue operating your business.

Click here for Paul’s PowerPoint presentation.

The government makes employers responsible for ensuring their employees can legally work in the United States, according Kevin Paul, an attorney with the Rocky Mountain Employers Immigration Alliance.  About 10 years ago, this alliance put together a farm labor team to deal specifically with agriculture employment issues.

“The government really relies on you to be the first line of defense,” he said to attendees at the 2020 Vita Plus Custom Harvester Meeting.

That responsibility makes the I-9 form from the U.S. Citizenship and Immigration Services (USCIS) one of the most important documents employers have on file.

“This is one of those things you’ve got to do right, or you can get in a lot of trouble for it,” said Paul.

He explained that employers must have I-9s on file for “every person who receives a W-2 that lists the wages you paid them for working on your farm or for your business,” regardless of whether they work part-time, are family members, or are employed elsewhere as well.  Simply put, if you pay them a wage or salary, you need completed I-9 forms for them.  These forms are not submitted to any government agency; they are held by the employer only.

Paul said I-9s should be completed with new employees on the first day they report for work, so he recommends asking employees to bring their identification and work eligibility documents with them on that day.  Click here for a list of acceptable identification and work eligibility documents.  Paul noted employers are not required to keep photocopies of the documents; they only need to “physically examine” them.  The part of the I-9 form that employers sign says the documents “appear to be genuine and to relate to the employee,” so unless they appear fake or you know they’re fake, you may accept them as presented.

If an employer failed to complete an I-9 form for an employee, he said the form should be completed as soon as possible, but the employer should not backdate the form, as that would be considered perjury.

I-9 forms should be kept “as long as you have to, but no longer,” according to Paul.  He said the original signed form should be kept as long as an employee works for you.  When the employee leaves, the form should be kept for three years after his or her hire date or for one year after the termination date, whichever is longer.  Paul recommended determining the correct “throw-away” date when the employee leaves and writing it at the top of the form.  Make it a regular practice to review and shred these forms accordingly.  Paul also advised keeping all I-9s separate from other paperwork so that they are easy to find should you need to gather them quickly.

One scenario where that may happen is if an employer receives a Department of Homeland Security “Notice of Inspection” or “Immigration Enforcement Subpoena.”  Should an employer receive one of these documents, Paul said the employer should seek the help of an immigration attorney right away.  If you do not know of an immigration attorney in your area, you may find one through the American Immigration Lawyers Association.

Paul also explained that the Social Security Administration (SSA) is mailing “No-Match” letters to employers, “advising that some of the names and Social Security numbers the employer submitted on its W-2 forms don’t match with the SSA’s records.”  If an employer receives one of these letters, he or she needs to check records for mistakes.  If no mistakes are found, the employer should advise employees to check with the local SSA office to identify the problem.

While paperwork isn’t a “fun” part of the job, Paul emphasized the importance of accurately completing these documents to continue operating your business.

“Know what the rules are, play by the rules, and play exactly by the rules,” he said.  “It’s very easy to get caught in a spiral if you don’t do this stuff right.”