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Agency panel clarifies I-9 document issues
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U.S. Citizenship and Immigration Services (USCIS) is developing a “smart” online I-9 form to help guide employers in filling them out correctly, according to an agency official.
The goal of the online form is to prevent easily fixable errors such as not filling out required fields, said Katherine Lotspeich, deputy chief of the Verification Division at USCIS.
Lotspeich told attendees at the Council for Global Immigration’s 2015 Symposium June 10, 2015, that the soon-to-be-released form will have drop-down boxes and guides but will not offer all of the features of electronic I-9 forms on the market and will not connect with E-Verify, the government’s taxpayer-funded electronic employment verification system.
Lotspeich was joined on the symposium panel by representatives from Immigration and Customs Enforcement and the Department of Justice, where they discussed several vexing I-9 document issues.Driver Authorization Cards as List B Documents
Much uncertainty has surrounded the validity of driver authorization cards, which grant driving privileges to undocumented immigrants, as a document to be presented to HR during the employment verification process. Ten states and the District of Columbia allow unauthorized immigrants to obtain driver’s authorization cards using a foreign passport or birth certificate or evidence of current residency in the state.
Lotspeich clarified that employers presented with a valid driver authorization card must accept it as a List B document for the Form I-9, and then review the List C work authorization document also presented to verify that it matches the presenter’s name and appears genuine. “Rejecting a document that satisfies Form I-9 requirements may constitute illegal discrimination under the Immigration and Nationality Act’s anti-discrimination provision or Title VII of the Civil Rights Act of 1964,” she said.
She also clarified that accepting driver authorization cards as List B identity documents “does not, in and of itself, support a conclusion that the employer had actual or constructive knowledge that an employee is not employment-authorized.”
What If Original Identity Documents Are Fraudulent?
Another thorny issue—especially in light of President Barack Obama’s executive action granting work authorization to millions of undocumented workers—is what to do when an employee comes forward and reveals that his or her employment verification documents were phony. If an employee is fired under this scenario, the Justice Department’s immigration anti-discrimination office will audit the employer to see if it’s “honesty” policy has been applied consistently and applied to other forms of dishonesty, an official said.
Jenny Deines, an attorney with the Office of Special Counsel for Immigration-Related Unfair Employment Practices, told symposium attendees that potential discrimination issues could arise if employers choose to terminate an employee who presents new work authorization documents and admits that documents originally presented during the I-9 process were not genuine.
Deines cited the USCIS Handbook for Employers, which states, “In that circumstance you should complete a new Form 1-9. Write the original hire date in Section 2, and attach the new Form 1-9 to the previously completed Form 1-9 and include a written explanation.”
Deines said that her office “cannot identify any violation” when employers accept documents that reasonably appear to be genuine, regardless of whether an employee admits that the documents previously presented were “not real.” Termination in a case like this is not only not required but an employee who is terminated under these circumstances may allege citizenship status discrimination, she said.
Deines added that document abuse may also be implicated when terminating someone under this scenario. Document abuse occurs when an employer rejects valid Form I-9 documentation, demands more or different Form I-9 documentation, or requests specific Form I-9 documentation based on an employment-authorized individual’s citizenship status or national origin.
North Dakota Joins RIDE
Lotspeich gave a plug for the E-Verify driver’s license verification program. The Records and Information from DMVs for E-Verify (RIDE) initiative, an enhancement to the E-Verify program, verifies the validity of driver’s license and ID card information by matching the data entered by employers against participating state motor vehicle department records. Driver’s licenses and ID cards account for nearly 80 percent of the documents used as proof of identity by employees for E-Verify.
Lotspeich announced that North Dakota has signed up for the program, making it the sixth state to do so after Florida, Idaho, Iowa, Nebraska and Mississippi.
When a prospective employee presents a driver’s license or ID card as his or her List B document for employment verification, E-Verify will prompt employers to enter the document information and will verify it against state records. “That cross-checking ability serves an important role,” she said.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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