Admittedly fraudulent documents and the I-9 form

by Jesse Goldstein

The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices in the Civil Rights Division of the U.S. Department of Justice recently provided guidance on how employers are permitted to react when employees confess that they previously presented fraudulent documents in conjunction with Form I-9, which verifies workers’ employment eligibility.

I-9 compliance obligations
The Immigration Reform and Control Act of 1986 (IRCA) requires all employers with employees in the United States to verify employment eligibility of all workers hired after November 6, 1986. That obligation is documented by the Form I-9, which must be used by all U.S. employers, regardless of the size of their business and the number of employees they have.

Employers must make the Form I-9 available for inspection to an officer of the U.S. Citizenship and Immigration Services (USCIS), the U.S. Department of Labor (DOL), or the OSC, upon request.

Penalties for I-9 violations
Civil and criminal penalties can be assessed for noncompliance with IRCA’s requirements. Under IRCA, an employer’s failure to properly complete and maintain I-9 forms (commonly referred to as “paperwork violations”) can result in civil fines of $100 to $1,000 per violation, per form. The amount of the fine can vary depending on several factors, including:

1. The size of the business;
2. The seriousness of the violation;
3. The employer’s good faith in completing the I-9;
4. The employment of unauthorized aliens; and
5. The employer’s history of previous violations.

There are progressive mandatory civil penalties for the unauthorized employment of aliens, as well as civil and criminal penalties for a finding that the employer engaged in a “pattern or practice” of hiring unauthorized aliens.

New guidance
On January 8, 2015, the OSC publicly responded to questions from an employer that requested guidance “for an employer that accepted an employee’s work authorization documents that appeared genuine, where the employee later presents a new [Social Security] number and work authorization documents and states that the previous documents were not real.” The employer asked whether the situation opened the company up to liability for discrimination if it chose to keep or terminate the employee.

The OSC responded that the situation is addressed in the USCIS handbook for employers, which states:

You may encounter situations where an employee informs you that his or her identity is different from that previously used to complete the Form I-9. In that circumstance, you should complete a new Form I-9. Write the original hire date in Section 2, and attach the new Form I-9 to the previously completed Form I-9 and include a written explanation. In cases where an employee has worked for you using a false identity but is currently working authorized, the I-9 rules do not require termination of employment.

The OSC could not find an I-9 violation “when an employer consistently accepts documents that employees choose to present that reasonably appear to be genuine and relate to the individual, regardless of whether an employee admits that the documents previously presented for employment eligibility verification were not real.” The agency did point out, however, that “an employer with a consistently-followed policy of terminating individuals for providing false information during the hiring process may have a legitimate non-discriminatory reason for the termination.”

Bottom line
The Form I-9 process is a requirement for demonstrating that your company has verified that a particular employee is authorized to work in the United States. However, you must ensure that you understand and have complied with federal antidiscrimination provisions, even when an employee explicitly acknowledges that he previously submitted false information. Don’t hesitate to consult with counsel if necessary.

Jesse Goldstein is an attorney and shareholder with Vercruysse Murray, P.C., in Detroit, Michigan. He may be contacted at jgoldstein@vmpclaw.com.