Questionable Documents during the I-9 Process: Guidance from the OSC

Employers often encounter unfamiliar documents during the I-9 Employment Eligibility Verification Process.  Not only are there numerous types of documents issued by the Department of Homeland Security to foreign nationals, but there are also numerous versions of the social security card and at least 50 different state driver’s licenses. With so many possibilities it is often difficult for employers to decide when to reconsider a document that looks questionable and when not to.

The Office of Special Counsel (OSC) a division of the Department of Justice is  responsible for investigating immigration-related discrimination in the workplace.  The OSC has provided guidance to employers regarding presentation of questionable documentation during the I-9 process.  Employers should use this advice to create a standard policy to be followed in all circumstances. With consistency in implementation of the policy, employers may reduce their likelihood of violating any of the anti-discrimination provisions in the immigration law. The OSC recommends that to avoid even the appearance of a violation, employers should inspect documents in the same manner for all employees.

 If an employer believes that a document being presented during the I-9 process does not reasonably appear to be genuine or relate to the person presenting it, the employer may reject the document.  In making this determination, employers should look to the photograph, the personal details, such as date of birth, height, and weight, as well as the quality of the document itself to make this determination. Presented documents may also be compared to photographs of official documents provided in the USCIS Employer I-9 Handbook.  Because, there are so many versions of immigration-related documents, it would be difficult to refuse to accept a document on this basis alone, although it is a helpful guide for employers.

 When an employer decides that a document is not acceptable for whatever reason, the employer should ask the employee if he or she is able to provide other documents from the List of Acceptable Documents on page 2 of the I-9 form. The OSC advises that this will not be document abuse, if the originally presented documents were genuinely problematic.

 The best way to approach an employee in this circumstance is to explain the problem with the existing documents and provide the employee with the List of Acceptable Documents and ask the employee to return with new documents, within 3 days of hire. No adverse action should be taken prior to the fourth day after hire, thus giving the employee the full legally allotted time to present the new documents.

 The OSC also cautions, however, that if a work-authorized employee’s genuine documents are erroneously rejected based on the belief that they are fraudulent, the employee may choose to file a charge with the OSC.  In this instance, the OSC’s investigation will focus on the intent of the employer.  Therefore, as long as the employer had a non-discriminatory intent in requesting more or different documents, no charge will be brought against the employer.  

 On the other hand, if an employer knows that a document is fraudulent and chooses to accept it during the I-9 process, the employer may be deemed  to have  knowingly hired an undocumented worker,  which is a civil and criminal violation of federal law.

 The OSC also considers the situation wherein an employer refuses to rehire an employee who it believes provided fraudulent documents in the past. This could happen in two scenarios: (1) An employee whose documents were rejected within 3 days of hire and was thus terminated returns sometime later with new documents  or (2) an employee admits to the employer that he or she used fraudulent documents in the past, but now has valid documents.

 In the first scenario, the OSC considers the evidence of fraudulent documents being  presented as  circumstantial and cautions that the rejection of a presently work-authorized individual from employment based on prior undocumented status, could allow for the employee to file a charge under the anti-discrimination provision.  The OSC does not provide guidance on the second scenario, but in general it is in the employer’s long-term best interest not to rehire the employee using the new documents.

 If a claim were filed by an employee in either scenario described above, the OSC’s investigation would focus on  the following factors:

  1. Does a company have an Honesty Policy?
  2. How consistently is the employer’s Honesty Policy applied to employees who make false representations on employment applications or other employment forms?
  3. Is the employer using enforcement of the honesty policy in this circumstance as a pretext for national origin or citizenship status discrimination.

 In general, the more consistently an employer follows its own honesty policy on a regular basis in all applicable instances, the less likely the OSC will be to find a violation when the claim involves I-9 documentation issues. If a company does not have an honesty policy or does not regularly follow it, decisions will have to be made on an ad hoc basis, but should always be guided by legal considerations, and prior company actions.

 In any of the difficult  situations described above, whether it be reviewing questionable documents, completing I-9s with new documents, or terminating employees for false information, seeking the advice of employment and immigration law counsel is always advisable prior to making any decisions that could ultimately result in legal action against the employer.

 For additional information regarding I-9s, immigration-related discrimination, or any other immigration matters, please contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

About vbimmigration

For More Information Call 215 979 1840 Immigration Law Partner at Duane Morris, LLP. 20 years representing companies and individuals in all aspects of immigration law. H-1Bs, L-1s, TNs, PERM, Global immigration; compliance; working visas; green cards; consular processing citizenship and deportation.
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