Document Abuse in I-9: Common Mistakes

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The Immigration and Nationality Act prohibits employers from discriminating against individuals based on their citizenship or immigration status, or based on their national origin, in the Form I-9, Employment Eligibility Verification, process. It is important for employers to develop, implement and enforce anti-discrimination policies, practices and procedures, and to ensure that all employees and their authorized representatives conducting Form I-9 verification on their behalf understand the rules. Employers should also provide them with appropriate and adequate education on employer responsibilities and worker rights.

To avoid discrimination, the employer should treat all job applicants equally when:

  • Publishing a job vacancy
  • Accepting applications and resumes
  • Scheduling and performing interviews
  • Releasing job offers
  • Verifying the applicant’s authorization to work
  • Hiring the applicant
  • Terminating the applicant’s employment

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), in the Justice Department’s Civil Rights Division, is responsible for enforcing the anti-discrimination provisions of our nation’s immigration law.  The OSC enforcement involves action based on complaints filed, and OSC also initiates independent investigations based on information developed during individual charge investigations, or leads provided by other government agencies and the general public. Settlements or successful adjudications may result in civil penalty assessments, back pay awards, hiring orders and the imposition of injunctive relief to end discriminatory practices.

A couple of organizations have come to the news front recently for fines with regard to document abuse – a major producer of pork products and a manufacturer of components for recreational vehicles & manufactured homes. Both these companies ended up with heavy fines and negative publicity. In order to avoid such cases and risks, we have to have a better understanding on what is required by the employer when asking for documents during submission of I-9 form.

 Document abuse can occur in any of these prohibited practices:

  • Improperly requesting that employees produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization;
  • Improperly requesting that employees present a particular document, such as a “green card,” to establish identity and/or employment authorization;
  • Improperly rejecting documents that reasonably appear to be genuine and belong to the employee presenting them; and
  • Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to produce particular documents the employer does not require other employees to produce.

There is a need to establish uniform practice throughout the workforce. An employer cannot ask the employee to submit any particular document while completing Form I-9. Also, Form I-9 is required from all employees irrespective of citizenship or race. Companies need to regularly, and broadly, evaluate their Forms I-9 and E-Verify compliance programs.  This involves reviewing the process from hiring to record retention and everything in between: hiring policies and procedures; correct Forms I-9 completion; document review, E-Verify TNCs; re-verifications; document retention; and avoiding employee discrimination. Training is another important factor to be taken into consideration as personnel dealing with I-9 and E-Verify should be well-versed with the existing regulations, and take action accordingly.

EMP Trust is a Designated E-Verify Employer Agent and can help you in maintaining compliance with the E-Verify process. Eliminate I-9 form errors, improve the accuracy of their reporting, protect jobs for authorized workers, and help maintain a legal workforce with our E-I9 Forms. Learn more from our website.

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