Labor & Employment Law I DECEMBER 9, 2015

Sometimes Employer May Lawfully Ask for Additional Documents after Internal I-9 Audit

Attorney 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 person’ standard?”

Alberto 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.

To 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.  
In 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.
If, 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.
Ruisanchez 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.”