By: Susannah L. Ashton

The Federal Immigration Nationality Act and Form I-9 Requirements

The Immigration Nationality Act (INA) makes it illegal for employers to knowingly hire persons who are not legally present in the United States. Employers who do so are subject to fines and possible imprisonment.

In order to ensure that all employees are legally present in the United States, and thus eligible for employment, they are required to submit a Form I-9 to verify their identity and authorization for employment. When submitting such form, employees are required to provide either one document from List A (e.g., passport) or 2 documents: a List B verifying identity (e.g., driver’s license) and a List C verifying employment eligibility (e.g., social security card). If an employee is unable to provide both a List B and a List C document, he or she is not considered eligible to work in the United States.

California AB 60 Licenses

On January 1, 2015, the California Department of Motor Vehicles began issuing a new type of driver’s license to applicants who cannot submit satisfactory proof of legal presence in the United States, but who otherwise meet all qualifications for the issuance of a driver’s license. Such a license, termed an “AB 60” driver’s license contains a mark stating “Not for Federal Identification.” This designation means that an AB 60 License is not compliant with the REAL ID Act in some way. However, the REAL ID Act states that this designation should not raise inferences or assumptions regarding an individual’s citizenship or immigration status, and further, State law precludes discrimination against a person holding an AB 60 License.

United States Guidance on AB 60 Licenses as Acceptable List B Documents

On May 19, 2015, the United States Citizenship and Immigration Services (USCIS) recently issued guidance on the applicability of AB 60 Licenses for Form I-9 purposes. On June 4, 2015, various grower associations and legal representatives in the field, along with The Saqui Law Group, issued an Industry Announcement providing guidance to employers in handling AB 60 Licenses.

Q: Is a state-issued license with the notation “NOT ACCEPTABLE FOR OFFICIAL FEDERAL PURPOSES,” such as the AB 60 License, an acceptable Form I-9 List B document?

A: An AB 60 Driver’s License with the words “FEDERAL LIMITS APPLY” or “NOT ACCEPTABLE FOR OFFICIAL FEDERAL PURPOSES” is an acceptable List B document for identification purposes if:

• It contains a photograph or other identifying information such as name, DOB, sex, height,
color of eyes, address

and

• Employers must also examine a List C document establishing employment authorization.

Q: What is a “knowing hire” violation?

A: An employer who has knowingly hired unauthorized workers is subject to monetary penalties of up to $16,000 per violation.

A “knowing hire” violation can be based on actual or constructive knowledge of an employee’s unauthorized status. Constructive notice means that an individual knew, or should have known, of a specific fact.

Q: Does acceptance of an AB 60 License constitute a “knowing hire violation”?

A: Acceptance of an AB 60 License does not, in and of itself, support a conclusion that an employer had knowledge of an employee’s unauthorized status.

Whether an employer is considered to have actual or constructive knowledge that an employee lacks employment authorization is determined on a case-by-case basis and depends upon all of the facts and variables specific to the individual case.

The omission from the USCIS’ guidance of any statement that an employer must take any affirmative steps other than accept such a license as a List B identity document in the Form I-9 process indicates the federal government does not expect an employer to inquire into why an employee claiming employment eligibility has such a license.

However, inquiry notice arises when an employer would have obtained actual knowledge had he or she taken reasonable steps to resolve any apparent discrepancy between an employee’s List B identity document and List C employment authorization document.

Q: Can an employer refuse to accept an AB 60 License or ask for a different form of documentation?

A: No. Employers must accept an AB 60 License since it satisfies Form I-9 requirements. Only documents that do not appear to be genuine or relate to the specific employee may be rejected. Failure to accept an AB 60 License may constitute illegal discrimination under the INA.

Q: If an existing employee presents an AB 60 License that bears identifying information that is different than what currently appears on their Form I-9, must an employer alter the information on Form I-9 to comport with the information on the AB 60 License?

A: While such a request may seem innocuous, it actually does three things: (1) puts the employer on notice that the current Form I-9 information was falsely given; (2) imports actual knowledge to the employer that the AB 60 License was obtained because of the employee’s “illegal” status, thus removing all grey areas; and (3) requires the employer violate federal law.

Unfortunately, the USCIS did not provided guidance on this matter. Thus, if this event arises, employers should primarily agree to change any necessary information as long as the employee can provide the requisite secondary forms of documentation required by Form I-9. However, it is likely that this scenario removes the grey areas and puts the employer on constructive notice that the employee is not legally authorized to work in the US. The employer thus risks violating federal law by continuing to employ such person.
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Counsel to Management:

In light of USCIS’s guidance and Industry Announcement, if an employer is given an AB 60 License as a List B document, they should comply with the following:
• Employers must accept AB 60 Licenses as List B documents.
• Employers should not accept photocopies or duplicates for Form I-9 purposes, but only original documents.
• Employers must also examine a List C  document establishing employment authorization.
• If an employer has any reason to doubt the veracity of a List B or List C document, that employer
must take reasonable, affirmative steps to resolve any potential discrepancy.

FOR IMMEDIATE RELEASE:

CONTACT:
Roger A. Isom
California Cotton Ginners & Growers Associations

Phone: (559)252-0684
Fax: (559)252-0551
email: roger@ccgga.org
The California Cotton Ginners Association is pleased to announce that Jesse Currlee of Supima has been named as the recipient of the 2015 Distinguished Service Award.

The award is given each year to honor and recognize an individual outside the Ginners Association that have made significant contributions to the Ginners Association and/or the cotton ginning industry.  This year’s recipient is a graduate of Texas A&M with a degree in marketing.  He began his business career in 1968 with Armstrong World Industries in their Lancaster, Pennsylvania corporate headquarters.  He later moved to Atlanta, Georgia, where he was responsible for the company’s industrial sales to the textile industry in Georgia, South Carolina and Florida.  In 1973, he joined the U.S. textile industry as Executive Secretary of the Georgia Textile Manufacturers Association and its affiliate organization, The Textile Education Foundation, in Atlanta.  In 1979, he was named General Manager of Supima in Phoenix, Arizona, and in 1981 he was named President of the organization. He is a former trustee and past Chairman of the Texas A&M Foundation. He also served as a director of the 12th Man Foundation at Texas A&M and is a member of the President’s Council of Advisors. In 1993, he served as President of the Former Students Association of Texas A&M University, and is currently a member of the Phoenix Rotary Club; Phoenix Committee on Foreign Relations; Advisory Director of the Arizona Cotton Growers Association; and an advisor to the Executive Committee of Cotton Council International headquartered in Washington, D.C.

Jesse fostered the introduction of Supima to the fashion industry in a major way with the start of its now recognized and respected annual runway fashion show during the September fashion week in New York City. That show has now been invited to Paris this year for a special showing at the US Ambassador’s residence later this year.  Under Curlee’ s leadership, Supima began a licensing program for customers wanting to use the Supima name.  That program has grown today to over three hundred licensees worldwide and the income from that program has helped Supima survive without increasing grower dues since its beginning.  Supima now licenses the name and trademark worldwide to textile/apparel manufacturers, brands and retailers with 370 licensees in 32 countries.  Under Curlee’s leadership, the Supima name has grown to worldwide recognition as the finest cotton fiber in the world.  No better proof of that fact can be made of this fact than is witnessed by the demand of many of the world’s top designers and brand name retailers in their growing use and loyalty to the Supima name! He has held a long and distinguished career, and there is absolutely no doubt the pima industry would not be what it is today without the leadership of Jesse Curlee.

The California Cotton Ginners and Growers Associations are voluntary dues-based organizations representing cotton growers and cotton gins throughout California on regulatory and legislative issues ranging from energy and air quality to labor and water quality.

FOR IMMEDIATE RELEASE:

CONTACT:
Roger A. Isom
California Cotton Ginners & Growers Associations
Phone: (559)252-0684
Fax: (559)252-0551
email: roger@ccgga.org

The California Cotton Ginners Association is pleased to announce that Russell Patterson has been named as the recipient of the 2015 Ginner of the Year.  The award is given each year to honor and recognize an individual who has provided dedication, knowledge, and special service to this Association as well as the ginning industry.  This year’s recipient graduated from Fresno State University in December 1978 with a Bachelor of Science Degree in Business Administration, with an emphasis in Finance.  He began his banking career with Bank of America in January 1979. During his 22 years with Bank of America, he held positions as a General Lending Officer, performing consumer and small business loans.  He spent 2 years in the Bank’s Special Asset’s Department restructuring and/or recovering non-performing loans. He also managed a Small Business Group. His last banking position was in the Bakersfield Commercial Lending Group where he managed a $50 million portfolio of loans/lines of credit for growers and processors.  In 2001, Russ was employed by Tech Ag Financial Group, where for the last 14 years he has provided crop financing as a tool to obtain business for our Chemical, Fertilizer and Ginning business.  In 2007, he was asked to include as part of his duty to Manage Buttonwillow Gin for one year until a replacement was found.  According to Steve Houchin, he did such an outstanding job we convinced him to manage the Gin for the next 7 years.  From the Association’s perspective, he has played an active role from his first day as a board member, all the way up to becoming the 2^nd Vice President.  He is the first one to show up at every board meeting, never misses a board meeting and has even traveled to Sacramento numerous times for Association activities.

The California Cotton Ginners and Growers Associations are voluntary dues-based organizations representing cotton growers and cotton gins throughout California on regulatory and legislative issues ranging from energy and air quality to labor and water quality.