One of the toughest tightropes for an employer to walk is one they encounter when completing the Form I-9 for new hires. Strict regulations govern completion of the form.
Employers often fear the consequences of hiring an unauthorized worker so much that they go overboard trying to avoid such hires. That risks unwittingly discriminating against new hires, which can result in an investigation (and possible fines) by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).
Because it is such a balancing act, employers often wonder how closely they can or should look at the documents presented by employees to prove their identity and work authorization.
Every employer should develop as clear a policy as possible when it comes to the Form I-9, and the policy should set forth rules to follow when reviewing documents. Here are the basic legal parameters:
- You are not expected to be a document expert. Apply common sense and your experience when reviewing documents. If you've seen hundreds of green cards, and today’s green card looks and feels different from those, additional research or investigation might be warranted.
- You are expected to carefully review original documents (not copies, with the sole exception being a certified copy of a birth certificate).
- You must ensure that the documents reasonably appear to be genuine. This means that they must be free of typos; the “Departament” of Homeland Security does not exist. They must not have been obviously altered; employees have been known to cut and paste photos onto documents or to erase a person’s name from a Social Security card and type in their own.
- You must ensure that the documents reasonably appear to relate to the person presenting them. Take into account that people can change their appearance, so the photo on a document might not look exactly like the employee. But if, for example, an employee is obviously quite young, and her driver’s license says that she is 75 years old, you might have to reject the document.
- Any document containing an expiration date must be unexpired at the time the employee presents it to you. Even if the document expired yesterday, you cannot accept it today. (This does not mean that you later have to “reverify” when documents expire; you only need to reverify if an employee’s work authorization expires or if an employee presented a receipt for a lost, stolen, or damaged document.)
- If you use the government's E-Verify system, you cannot accept a List B document if it does not contain a photo. This typically becomes an issue only when employees present Native American tribal documents or voter registration cards.
- If you feel uncertain about whether a document is genuine, you need not make a determination on the spot. You can make a clear copy of the front and back of the document and have your supervisor or an immigration attorney review the document. This is a good option when an employee presents a type of document that you have not seen before or when a document “just doesn’t look right” to you but you cannot articulate the reason why.
If a document does not pass your initial review, you can apply additional scrutiny, analyzing it more closely to list all of the reasons that you believe it to be a fake. Many employers opt to have an immigration expert review documents that don't pass the initial review; this gives them peace of mind that they have not rejected genuine documents.
If you reject documents that appear not to be genuine, you may either
- allow the employee an opportunity to present different documents (later terminating the individual’s employment if he or she is unable to do so); or
- terminate the worker’s employment if and only if presentation of false documents violates your company’s dishonesty policy and other employees would face termination for similar conduct.
Signing up for E-Verify can be helpful to employers. This federal program allows you to submit information from an employee’s I-9 to the U.S. government for confirmation that the employee is work-authorized.
The E-Verify system includes a photo-match tool for certain documents. This provides the photograph that the government has on file from an employee’s document so that you can compare it against the document the employee provided. E-Verify is not 100% accurate, but it does provide additional assurance that an employee’s documents are genuine and that the employee is authorized to work.