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That's Not Me: When an Employee Changes I-9 Verification

November 6, 2018
 
An employee who previously completed an I-9 Form shows up at Human Resources one day and says he has a new identification reflecting his real name and correct legal status in the U.S.
 
“I recently became a citizen and now I am now completely legal,” he says.
 
You react with genuine surprise because you handled the employee’s I-9 originally and thought the documents were genuine when presented at the time of hire. But they weren’t. What do you do? 
 
Employers are required to accept facially-valid documents from the I-9 acceptable documents list without further inquiry. The immigration law does not expect employers to be immigration police unless the document appears on its face to be unacceptable. 
 
Even then the expectation is not to turn the person over to Immigration and Customs Enforcement (ICE) but to reject the document and ask for an alternative one, if it exists. If the employee does not have an acceptable identification, you may terminate the person’s employment. 
 
But what happens when the employee presents new documents and by doing so admits that the previously-submitted I-9 documents were not real.
 
A 2015 letter from the Department of Justice Office of Special Counsel (OSC) offers some useful guidance regarding discrimination concerns when an employee presents new work authorization documents and explains that the documents originally presented were not genuine.
 
The OSC noted that the M-274, the United States Citizenship and Immigration Service USCIS Handbook for Employers, Guidance for Completing Form I-9 states that the recommended course of action is to complete a new Form I-9 and to include a written explanation as to why you are doing so.
 
You should also append the original one to demonstrate to anyone (such as an ICE investigator) that you did fill out an I-9 at the time of the original hire. The M-274 also makes it clear that the I-9 rules do not require you to terminate the employee so long as the new document or documents presented appear to be facially-valid. Any employer wishing to terminate the employee based on these facts needs to be aware that the rules are complex and may implicate discrimination concerns.
 
The 2015 letter also states that an employee terminated under the above circumstances could allege citizenship status discrimination, national origin discrimination, or unfair documentary practices. In fact, a review of the introductory section at the top of page 1 of the I-9 includes the following paragraph: 
 
ANTI-DISCRIMINATION NOTICE: It is illegal to discriminate against work-authorized individuals. Employers CANNOT specify which document(s) an employee may present to establish employment authorization and identity. The refusal to hire or continue to employ an individual because the documentation presented has a future expiration date may also constitute illegal discrimination.
 
 
In light of that statement, the letter makes it clear that the degree to which such termination would violate the anti-discrimination provisions depends on the specific facts presented. An employer with a consistent policy of terminating individuals for providing false information during the hiring process may have a valid nondiscriminatory reason for the termination. But a review of that sentence raises as many questions as it answers.
 
Does the employer have a policy or practice of terminating individuals for providing false information? Is it a consistently followed practice or policy? Can the employer show they are non-discriminatory reasons?
 
While an employer may change its behavior going forward to conform to that practice, an employer needs to make sure that it is going to be consistently followed.
 
Generally, if a properly completed form I-9 is already on file and does not require reverification, employers have no need to make further inquiry or terminate an employee based on the outcome of such an inquiry, unless solid information or proof is available to indicate that the employee is currently not authorized to work in the U.S. It is important to evaluate each situation and determine what the proper course of action should be. 
 
Minimize the risk and investigate the E-Verify program administered by the federal government.
 
AIM members may contact the AIM Employer Hotline at 1-800-470-6277 with HR compliance questions.
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