How to Avoid ‘Document Abuse’ with I-9s

Overdocumentation on a Form I-9 and impermissibly limiting the range of documents that employees can present to establish work authorization are two common unfair documentary practices. Here’s how to walk a fine line to avoid such errors and how to ensure there’s no unlawful discrimination.

Patrick Shen, an attorney with Fragomen in Washington, D.C., said that Section 1324b of the Immigration and Nationality Act (INA) prohibits:

• National origin discrimination by employers with fewer than 15 employees (larger employers are within the U.S. Equal Employment Opportunity Commission’s jurisdiction under Title VII of the Civil Rights Act of 1964).
• Citizenship or immigration status discrimination.
• Unfair documentary practices, often called “document abuse.”
• Retaliation for asserting rights under Section 1324b.

Overdocumentation

It’s tempting for an HR professional to accept all of the documents presented by an employee for work authorization purposes, even if they present too many.

“This is actually frowned upon and can be considered document abuse,” said Sujata Ajmera, an attorney with Clark Hill in Austin, Texas.

Overdocumentation falls under prohibited unfair documentary practices, said Mira Mdivani, an attorney with Mdivani Corporate Immigration Law in Overland Park, Kan.

For example, it would be overdocumentation to accept a green card and a Social Security number card. A green card is a List A document on the I-9 form, while a Social Security number card is a List C document.

Employers should record only List A documents because they show both identity and employment authorization, or a combination of List B and List C documents because a List B document shows identity and a List C document shows employment authorization. So, if a green card is presented and recorded, there would be no need for that person’s Social Security number card for I-9 purposes, she said.

“We see a similar pattern with employment authorization documents (EADs),” she said. Instead of recording only the EAD in Column A, some employers proceed to record a Social Security number card, which is overdocumentation, Mdivani explained.

In I-9 audits, after reviewing a certain number of I-9s, it often becomes obvious that this pattern applies to employees that appear to be foreign to the I-9 administrator, because the same pattern doesn’t appear in I-9s for U.S. citizens with List A documents such as U.S. passports, she said.

Asking for new green cards when the green card on the I-9 is expiring also is illegal overdocumentation, Mdivani added.

“The rule on green cards is: if it is unexpired, take it and forget it, similar to a U.S. passport,” she said.

Many I-9 administrators don’t know this rule and confuse expiring EADs that need to be reverified with green cards, which need to be left alone, Mdivani said.

Impermissibly Limiting the Range of Documents Presented

Another common mistake that violates the anti-discrimination provision of the INA arises when an employer prompts employees on what documents to bring for their I-9 paperwork.

Sometimes. HR professionals mistakenly request that employees “bring in your I-9 verification documents, for example, a driver’s license and a Social Security number card.” Ajmera said that “making a suggestion like this could be misconstrued by an employee as a request for mandatory documents.” She explained that if an individual does not have a driver’s license or a copy of their Social Security number card, such a suggestion could lead the person to believe they cannot work for the company.

“While the HR professional’s intention may be to streamline the process and make it clearer for foreign nationals, the practice is not permissible,” said Benjamin Nucci, an attorney with Snell & Wilmer in Phoenix.

A best practice is to provide the list of acceptable documents for the I-9 to the employee and let them decide what combination of documents to present, Ajmera said. “If they bring too many, show them the list and ask them to choose what they want listed in Section 2” of the I-9 form, she noted.

Avoid Unlawful Discrimination

The anti-discrimination provision of the INA prohibits employers from engaging in national origin and citizenship discrimination.

HR professionals and recruiters are barred from asking potential employees questions about their nationality or citizenship, Ajmera said. If someone divulges this information on their own, the law prohibits it from being considered during the hiring process, she added.

“These anti-discrimination provisions include post-hire treatment of employees,” Ajmera said. “This includes ensuring there is no disparate treatment based on national origin or citizenship in promotion or firing of existing employees.”

Document the reasons an individual was recruited, hired, promoted and fired, as applicable, she said.

In addition, Title VII prohibits discrimination based on race, color, national origin, religion or sex.

“Sometimes, we will see employers inadvertently ask questions about citizenship and nationality in order to gauge whether or not sponsorship will be required,” Ajmera said. “In many cases, they are not opposed to such sponsorship, but they do not realize that certain questions cannot be asked in an interview without a specific, justifiable reason.”

There are limited exceptions that permit some employers to restrict hiring on the basis of citizenship, Nucci noted. “For example, some regulations or government contracts require employers to limit a specific position to U.S. citizens,” he said. “However, this is rare.”

Short of a specific reason, any question beyond asking if someone is independently authorized to work and if they currently require or will require sponsorship is the limit on soliciting such information, Ajmera said.

Recommendations

Nucci recommended that employers:

• Develop clear and meaningful anti-harassment and anti-discrimination policies. Establish avenues for employees to submit complaints about alleged harassment or discrimination. Implement safeguards to ensure all claims submitted are promptly investigated through a comprehensive investigation.
• Conduct periodic training for the workforce, management and HR. Supervisors should be trained to identify possible harassment and discrimination in the workplace and understand their obligation to report it, even if no formal complaint is received.
• Continually educate employees on their role in preventing discrimination.
• Foster a culture of inclusion, equity and diversity.
• Conduct regular audits and assessments of workplace policies and procedures.

Have questions or feedback? Get in touch with Allen at allen.smith@shrm.org.