Identity theft and the use of fraudulent documents is a national problem and in some instances it is a serious national security concern. This issue affects everyone and every business, and protective measures should be taken to secure individuals’ information. However, when these issues arise in the I-9 context, what is a reasonable employer legally required to do and is there agreement on that reasonableness standard?
As immigration attorneys, we have advised our corporate clients that they are not expected to be “document experts” when it comes to reviewing identity and work authorization documents for the I-9 process. In fact, we purposely advise that we do not want the employer representatives to attempt to be “document experts” as there is too much liability if they are incorrect about the validity of a document. According to the USCIS M-274 Handbook for Employers, as long as the document presented by an employee during the I-9 process appears valid and genuine on its face, the employer representative should accept it. This advice still requires that the employer representative actually look at the original document and determine that it passes the “smell test.” Any obvious issues – a driver’s license with the wrong type of photo, a green card with obvious misspellings or typed on a bad typewriter, a social security card with a script font (all examples that we have seen in I-9 audits) would require the employer to take appropriate action. Acceptance of clearly fraudulent documents would mean liability for the employer.
But, what about those documents that are not clearly fraudulent? What are the steps that a reasonable employer should take to do their best to comply with the law? We recently attended an ICE IMAGE conference which was well presented and full of extremely valuable information. As part of the conference, an ICE agent gave an interesting and informative presentation on fraudulent document detection. The presentation included sample documents – copies within the PowerPoint and physical documents to review – and use of tools (i.e. flashlights, magnifying glasses and blacklights) used to review an original document. The ICE agent did a fantastic job of explaining the many hidden ways to tell if a document, such as a passport, driver’s license or permanent resident card, is fraudulent.
However, the message that ICE was relaying – whether intentionally or not – was that reasonable employers should get out their blacklight, flashlight, and magnifying glass to determine whether a document presented during the I-9 process is real or fraudulent. More importantly, there wasn’t much of a discussion regarding potential liability to an employer (especially with concerns raised by the Office of Special Counsel for Immigration-Related Unfair Employment Practices or employment lawyers) if it chose not to hire someone (or decided not to continue employment) because the employer representative was playing detective.
The question, as we see it is: “Do we really want an employer determining if an individual has presented appropriate documentation for the I-9 process based on trying to count the right number of imbedded pixels or photos imprinted on the green card?” While many employer representatives may be more than capable of performing this extremely detailed type of document review, such review should, in our opinion, be left to the experts who undergo extensive training to detect document fraud.
Employers need to remember that they cannot ask for specific documents, or refuse to accept certain documents that are valid on their face, which is what may occur if they engage in a detective-style of document review. An employer must accept a valid List A or a valid List B and a valid List C document if presented by the employee. But what is an employer required to do if upon review of a document, it appears to be fraudulent? The employer may inform the individual that the document is not acceptable and may permit the employee to provide a legitimate alternative document or may refuse to hire such individual. ICE has stated that an employer should not confiscate any documents and is not legally required to notify ICE but may choose to do so. What if the document(s) appears legitimate but the photograph doesn’t clearly look like the individual or the name doesn’t exactly match? The employer then may inquire further, to confirm to the best of their ability, that the individual in front of them is the same as the individual represented in the document(s).
As attorneys, we don’t believe that employers should be making hiring and firing decisions based on a process that requires them to act more like a detective than an employer. If they were to engage in such document scrutiny, they should not do so without consultation from an attorney who is also reviewing the document and involved in the decision of whether the document appears to be real or fake. The regulations and current policy guidance do not require this level of review by the employer in the I-9 process. As a result, it would seem that an employer would rarely, if ever, be found liable for failure to use any of the “fraud detecting gadgets” such as a blacklight. This is our understanding of the current policies and regulations, as well as our experience from I-9 audits.
Given that the policies affecting the I-9 process are constantly changing, it is imperative for employers and attorneys to remain up-to-date on the trends and expectations of ICE. We recommend that if there are questions regarding these matters, employers should reach out to counsel before taking any steps related to actions discussed in this blog.
Originally published by LawLogix Group INC. Reprinted by permission.
Sharon R. Mehlman is one of three Co-Managing Partners of Larrabee | Mehlman | Albi | Coker LLP, a specialty law firm engaged exclusively in the practice of United States Immigration and Nationality Law. Sharon Mehlman is a graduate of the University of San Diego, School of Law where she earned her Juris Doctorate degree.Ms. Mehlman is a member of the American Bar Association, the California Bar Association, the American Immigration Lawyers Association (AILA) and is active in the community. She is also a member of the Alliance of Business Immigration Lawyers, a group of leading immigration attorneys who work together on "best practices". Ms. Mehlman is past Chairperson, Vice Chairperson and Secretary of the San Diego Chapter of AILA and is a frequent speaker on business immigration issues. She is also past Chairperson of AILA’s California Service Center (CSC) liaison committee. Ms. Mehlman is currently the Chair of AILA’s USCIS Service Center Operations (SCOPS) Committee and AILA’s USCIS Benefits Committee where she works with USCIS Headquarters on a variety of immigration issues.
Kimberley Best Robidoux has been with Larrabee | Mehlman | Albi | Coker LLP since 2004.Kimberley focuses on corporate immigration matters for the high-tech, pharmaceutical/biotech and hospitality industries to assist companies with their implementation of immigration policies and procedures. She counsels corporate clients on immigration and related business matters, including corporate nonimmigrant cases, such as the H-1B, TN, O-1, L-1, E-1/E-2, and E-3 visa classifications, as well as employment-based immigrant petitions, such as outstanding researcher, extraordinary ability, multinational manager, and labor certification. She also advises on immigration consequences of mergers, acquisitions, and reductions in force. Kimberley also is well-versed in the area of employer I-9 and E-verify requirements and has successfully defended employers against I-9 compliance audits, conducted "in-house" audits to asses and assist employers in bringing I-9 records into compliance and performed I-9 management training. Kimberley also represents individuals with family-based and naturalization matters.