Stacey A. Simon requested guidance on how to advise a client following an
internal audit of the client’s Forms I-9. First, Simon sought advice on what
steps the client should take with respect to possibly falsified permanent
resident cards. Simon stated that her
firm’s inclination was to advise the client to meet with the employees whose
documentation was doubtful and request the employees to present different documentation.
Simon was concerned, however, that this post-employment request for different
documentation could result in possible discrimination complaints because the
affected employees share the same national origin. Second, Simon asked whether her
firm had an obligation to train the client in “what to look for in a valid
green card” or whether such training is “outside the scope of what their HR
should be trained to do since that would take them beyond the ‘reasonable
Ruisanchez, Deputy Special Counsel of the Office of Special Counsel for
Immigration-Related Unfair Employment Practices responded in An October 23,
2015 letter. He gave this advice.
prevent discrimination in violation of the anti-discrimination provision, an
employer (or its representative) conducting an internal Form I-9 audit should
conduct the audit in a consistent manner - treating similarly-situated
employees in a similar manner - and should not treat employees differently
based on citizenship status or national origin.
addition, an employer should apply the same level of scrutiny to Form I-9
documentation and not apply different levels of scrutiny based on citizenship
status or national origin. An employer which subjects documentation to additional
scrutiny based on the citizenship or national origin of the employee presenting
the documentation may violate the anti-discrimination provision.
after following these principles during an audit, an employer identifies
documentation that does not reasonably appear to be genuine or relate to the
employee and requests that the employee present alternative documentation, the
request for alternative documentation is unlikely to violate the
anti-discrimination provision. If the employer requests alternative
documentation, the employer should not request specific documents (though the
employer may state that the particular document called into question by the
internal audit may not be used again for Form I-9 purposes). The employee
should be permitted to present his or her choice of other documents, as long as
they are acceptable for employment eligibility verification purposes.
directed Simon to ICE regarding her question of whether her firm was obligated
to train its client on “what to look for in a valid green card.”
· Michael R. Lied
· Howard & Howard Attorneys PLLC
· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
· (309) 999-6311