Farm employers and Form I-9 compliance

Here are the basics for agriculture employers to be aware of.

Associate Professor & Specialist / Texas A&M University AgriLife Extension

Who: Any employer should have an I-9 on file for all employees. On the other hand, independent contractors are not required to complete the I-9 form.

Generally, an employer exerts great control over an employee, whereas an independent contractor provides his or her own tools, often works on only a specific project and is not directly supervised by the employer. Consult your attorney if you need advice on whether someone qualifies as an employee versus an independent contractor.

What: The purpose of the form is to verify the identity and employment authorization of employees. The document requires the employee to present information and the employer to verify information proving the employee’s identity and authorization to work in the U.S.

When: The I-9 form should be completed after an offer of employment has been made and at least within three business days of hiring. Usually, these forms are completed on the employee’s first day of work.

Where: Employers may obtain a current I-9 form from the USCIS website. Employers must keep a copy of the I-9 form for each employee for three years after the date the employee is hired or one year after the employee leaves, whichever is longer.

Why: Operators should comply because hiring an unauthorized person can result in serious consequences, and one of the best defenses to such charges is showing I-9 compliance. Under federal law, “knowingly hiring” an unauthorized alien results in criminal and civil penalties. For the first offense, civil penalties range from $275 to $2,200 per violation.

If the government finds a pattern of practice or violations by an employer, criminal fines can be levied of up to $16,000 per violation and/or up to six months imprisonment. Having proper I-9 compliance and document retention is excellent evidence on the employer’s behalf that he or she did not “knowingly” hire an unauthorized alien.

How: The I-9 Form is broken into three sections. The employee must complete Section 1 (basic information such as name, address and work authorization status), and the employer must complete Section 2 (examination of documents provided by employee to employer). Section 3 is only necessary when dealing with re-verification or re-hires.

Employees are required to present certain documentation to the employer for examination to prove their identity and work authorization status. There are three categories of documents (labeled A, B and C) that the employee may choose between in order to satisfy the I-9 requirements. An employee may present either a Category A document or both a Category B and Category C document.

A full list of permitted documents for each category may be found on the I-9 form. The employee is able to select which documents he or she wishes to present; it is illegal for an employer to require any particular document from an employee or to require multiple documents in any given category.

Many employers are nervous about the standard to which they will be held for examining such documents. How is a cattle rancher supposed to know if a driver’s license is a fake? Under the law, the employer is held only to a reasonable, good-faith standard. Thus, the employer need only ensure that the documents reasonably appear to be genuine and reasonably appear to be related to the employee.

For example, if a man who is 5 feet 3 inches, 150 pounds, with brown hair presents a driver’s license for someone who is 6 foot, 240 pounds and blonde, a reasonable person would be expected to know this document is not related to the employee.