January 19, 2016

How to Avoid Discrimination Claims if You Suspect a Fake Green Card During an I-9 Internal Audit

A periodic internal audit of your I-9 forms is a recommended risk assessment tool. But what happens if, while conducting the audit, you come across green cards or other documents that appear fake? As is usually the case with I-9 compliance, you must observe your dual obligations to avoid discrimination in violation of the anti-discrimination rules and to comply with employment eligibility verification rules.

Recently, the Department of Justice’s Office of Special Counsel for Immigration-Related Discrimination (OSC) issued a technical assistance letter (TAL) that addresses the anti-discrimination requirement when questionable green cards or documents turn up during an I-9 internal audit.

Based upon the TAL guidance and current government policies and procedures, here’s how to avoid violation of anti-discrimination rules:

  • Be consistent. Conduct your internal I-9 audit in a consistent manner, i.e. do not treat employees differently based upon their citizenship, immigration status, or national origin.  Choose the I-9 forms you want to audit without regard to employee’s status. Rule of thumb: If you have fewer than 100  I-9 forms, review all of them. If you have more than 100, than you can choose a random statistical sample of your I-9 forms to audit.  Of course, do not inspect the I-9 form differently because the employee is not a U.S. citizen.  Conduct the same careful review of all I-9 forms chosen for the audit.
  • Be reasonable. Employers are not expected to be experts in validity of immigration documents.  Instead, you must accept original Form I-9 documentation that reasonably appears to be genuine and related to the specific employee. The Handbook for Employers Guidance for Completing Form I-9 has examples of valid government documents.  But note that green cards and other immigration documents can change periodically so always check this resource first if you have doubts about the document presented. Also, you may need to research older versions of the documents as well.
  • Beware of photocopies. If you are viewing a photocopy of a green card or other document during an I-9 audit, you’re unlikely to determine its genuineness. The Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits cautions that “[a]n employer may not conclude, without foundation, that a photocopy of an employee’s Form I-9 documentation is not genuine or does not relate to the individual.” According to the guidance, “[a]n employer should not request documentation from an employee solely because photocopies of the documents are unclear.”
  • Be flexible. If you determine, based on a photocopy, that the green card does not appear genuine or to reasonably relate to the employee, you should contact the employee and offer the opportunity to provide the original green card or document or choose a different document to present from the Lists of Acceptable Documents. If the employee does provide the original green card or document at issue and it appears to be genuine and reasonably relates to the employee, you must accept the document and go no further.  However, if you determine that the original green card does not appear to be genuine or to reasonably relate to the employee, you should give the employee a chance to present a different document from the Lists of Acceptable Documents.
  • Be Secure. While an internal self-audit can be great preliminary tool to ensure your company’s compliance, it may leave major gaps on how to correct I-9 Form errors and how to handle specific situations in compliance with very complex immigration laws. A best practice in risk assessment is having an independent party perform an objective review and advise you appropriately. While independent consultants are available who can suggest corrections or changes, most employers prefer the security of legal advice that only attorneys can give. Few would disagree that hiring an immigration attorney with expertise in I-9 compliance is the most prudent way to protect your company.

What else would you like to know about I-9 compliance? Let me know in the comments and I’ll add it to my future posts. Can’t wait? You are invited to call 214-672-2161 or email abadmus@cowlesthompson.com.

This information is provided as an educational service and is not legal advice.