What to do When an Employee Tells you Their I-9 Documents are Fake?

Shocking – but this happens more than you think. And more so now with Deferred Action in place whereby individuals that are granted Deferred Action will be eligible to request employment authorization.

So what do you do when one day an employee presents new documents and admits that the previously-submitted I-9 documents were not real?

The OSC – the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices – could not identify any violation of the anti-discrimination law when: “and 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” nor when an employer allows an employee to continue employment under these circumstances.

The interplay between I-9 compliance and anti-discrimination regulations presents a major dilemma for employers.  Here are the basic legal parameters:

You are not expected to be a document expert. Apply common sense and your experience when reviewing documents.

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.

You must ensure that the documents reasonably appear to relate to the person who presented them. Take into account that people can change their appearance, so the photo on a document may not look exactly like the employee.

Any document containing an expiration date must be unexpired at the time of presentation. Even if the document expired yesterday, you cannot accept it today. (Remember later that this does not mean that you 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 E-Verify, 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 necessarily 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.

To give yourself additional peace of mind, consider signing up for E-Verify. E-Verify is a federal program that allows employer to submit information from an employee’s I-9 to the federal government for confirmation that the employee is work-authorized. For more information on how Paypro can assist you with I-9 verification and E-Verify, please contact us.