No one looks forward to an I-9 audit from U.S. Immigration and Customs Enforcement (ICE). I-9s are notoriously problematic because not only does the law dictate which types of documents an employer may accept, but it also stipulates that employers cannot demand or refuse particular documents. In other words, if a document is on one of the three lists of acceptable documents for proving an employee’s identity and work authorization, you must accept it.
Fortunately, the law doesn’t require employers to be experts on all I-9 documents. It would be impossible to learn all the documents’ characteristics and stay apprised of changes year after year. The only requirement is that employers be able to spot glaring, obvious problems that occasionally arise during the I-9 process. In keeping with that low-bar requirement, there are steps employers can take to prevent I-9 violations.
Steps to take to identify fake I-9 documents
Check for misspellings. One of the simplest—yet most effective—measures an employer can take is to read every word on documents carefully. A significant number of fake documents have typos or misspellings. For instance, look for words like “department” and “identified,” which are frequently misspelled on fake documents. “Department” might show up as “departament,” while “identified” is frequently misspelled as “identifed” or even “identification.” You don’t need anything more than a dictionary (or the Internet) to give documents a quick look over. You don’t have to be a forensic document expert, but you are held to a reasonable standard. Remember, counterfeit documents are a billion-dollar industry. Some fakes are very good.
Look for misnomers. Other potentially obvious errors may involve the name and picture on identification documents. Although an odd name isn’t an obvious sign of a forgery like a misspelling or typo, a document listing a name that is not commonly associated with the gender of the person presenting it should be a clear red flag. For example, a male employee presenting a permanent resident card that identifies him as “Susan” is typically a sign that the employer should carefully scrutinize the document. Because names and photos are some of the easiest items to check on documents, they often lead to a more careful evaluation, which may reveal misspellings you may have overlooked otherwise.
Be familiar with commonly accepted documents. Although you don’t have to be an expert on particular documents, being familiar with the most commonly used documents is a good strategy. For instance, driver’s licenses are frequently provided by employees and represent a known quantity. Ideally, an HR employee will be familiar with his own license and know what an authentic one looks like. Tailor preparations to your company. If your business sees a significant number of permanent resident cards, you can find legitimate examples on U.S. Citizenship and Immigration Services’ (USCIS) website. Familiarizing yourself with how documents look and which words may be misspelled will allow you to be more comfortable accepting them. Remember, you may reject a document only if you are sure it is false or a counterfeit. As the saying goes, measure twice, cut once.
Beware the OSC. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) can—and will—file discrimination charges if an employer wrongfully rejects a valid document. Further, an employer can’t require an employee to provide additional documents beyond the documents that are listed on the I-9. Requiring more documentation could result in a document abuse charge. Employers can be put in a difficult situation where they know they must verify the documents they are given but are afraid to act on their suspicions for fear of being wrong. In those situations, it’s best to remember what was set out at the beginning of this column: You don’t have to be a document expert. Just pay attention and spot glaring mistakes.
Conduct an internal I-9 audit. Despite your efforts, it’s possible that fake I-9 documents have gotten past HR. If your business has had I-9 violations in the past or has a significant amount of turnover, it’s a smart idea to engage experienced attorneys to conduct an internal I-9 audit. Not only can they help inspect documents that are submitted, but they can also find errors on I-9s that could result in fines should ICE decide to inspect your documents.
How to correct a bad Social Security number
John Smith is from New York and has never set foot in Texas. Recently, he was denied welfare benefits because a Texas company reported wages for his SSN. Little did you know that when you hired Jaime, a local employee, he provided a made-up SSN on his W-2. John Smith is an example of a typical innocent bystander—a victim of identity theft.
Although the Social Security Administration (SSA) provides employers the ability to verify employees’ names with their SSNs (recall that under the Immigration and Nationality Act (INA), you must verify the identity and employment eligibility of employees hired after November 6, 1986), employers are vulnerable to potential claims of national origin discrimination and unfair immigration and employment practices under the Immigration Reform and Control Act (IRCA). However, ignoring SSN problems is never the answer.
When an identity theft victim notifies you that one of your employees is fraudulently using his SSN, take the opportunity to help the victim solve the problem. Failing to do so can open your company up to an investigation and lead to a “Notice of Inspection” from ICE. Attorneys at Monty & Ramirez, LLP, have developed a simple yet effective method to help employers sort through this complex situation.
Step #1: Review. First, review your company records to identify when the victim’s SSN was used by a former or current employee. It is important to avoid knee-jerk reactions in this situation. Sometimes the issue arises because of an administrative error—e.g., incorrectly entering an employee’s name or SSN. That is particularly common with individuals from Latin American countries who have multiple last names that are sometimes entered as middle names or not included. If there are still questions after eliminating administrative error, inform the employee of the discrepancy to see whether there is another explanation.
If the matter involves a current employee, proceed to Step 2. If the matter involves a former employee, skip Step 2 and move on to Step 3.
Step #2: Evaluate. Second, evaluate your company’s policies regarding false information on job applications, employee dishonesty, and fraud. Remember that flexibility is key when developing remedial measures for violations of your policies. It is important to give yourself discretion in situations in which termination is warranted but not preferable.
Step #3: Complete. Third, complete and submit the current versions of Forms W-2c and W-3c for every year you reported the employee’s wages to the SSA using the victim’s SSN. For example, if the employee was employed from 2012 to 2016, you must file Forms W-2c and W-3c for 2012, 2013, 2014, 2015, and 2016. For Form W-2c, complete boxes A through I. In box D, “Employee’s Corrected SSN,” write in zeros—e.g., “000-00-0000.” Be sure to mark the box that indicates you are correcting the employee’s SSN. You do not have to complete boxes 1 through 20.
Step #4: Notify. Finally, notify the state unemployment benefits agency of the discrepancy. Although you have already submitted a correction to the SSA, the problem may have originated when the state unemployment benefits agency received an application from the victim or obtained a request for information from the victim’s state agency. When you inform the agency of the situation, it will ensure that it has the correct information for the employee and the victim’s SSN. That will help the agency in reporting wages to the correct individual.
The reverification problem: More isn’t always better—
and can sometimes get you in hot water
When it comes to complying with I-9 regulations, employers may mistakenly believe that requesting additional verification from employees who are green card holders will be beneficial to the company and ensure better compliance with federal law. More is better, right? Not in this case.
Once an employee with a green card is hired, you may not ask him to present a new document after his green card expires. Requiring more documentation is a common mistake that could result in an investigation by the OSC. Once someone is a lawful permanent resident, he is always a lawful permanent resident.
That clearly puts employers in a catch-22. If you’re too lax about the I-9 process, ICE will fine and maybe prosecute you. If you’re too aggressive in your documentation requests and demand that all employees always have current documents proving their eligibility to work, you could face heat from the OSC under the antidiscrimination provisions of the IRCA.
Discriminatory practices during the I-9 process include treating individuals differently on the basis of their national origin or citizenship status and requiring employees to produce more documents than necessary for adequate employment authorization.
For example, if an employee presents documents on List A, he isn’t required to produce any additional documents. Also, the employee gets to choose whether he would like to produce a document from List A or Lists B and C.
You can also get into trouble for improperly rejecting a genuine document. Don’t treat applicants differently—it’s important to follow consistent procedures and processes for everyone.
Sometimes, employees’ work authorization documents must be reverified. Generally, you must reverify an employee’s authorization documents before they expire. However, you should never subject U.S. citizens and lawful permanent residents to reverification.
Lawful permanent residents may have cards with or without expiration dates. But because of their status as lawful permanent residents, they are not required to provide additional documentation showing that their cards haven’t expired, even if their card has an expiration date.
Reverifying permanent resident cards may result in liability for document abuse, which is an unfair documentary practice. USCIS has provided useful guidance on I-9s for employers at www.uscis.gov/sites/default/files/files/form/m-274.pdf.