You arrive at the office bright and early, ready to begin today’s round of employee onboarding. Three new hires will be coming into your office today, and the only thing standing between them and gainful employment is you and your trusty I-9 form. All three employees have been given the same instruction – when you show up for work on Tuesday, please be prepared to show proof of your identity and authorization to work in the U.S. Failure to present these documents within 3 days will mean that you cannot work here.
You never particularly liked that wording, but what the heck – it’s the law. Your colleagues jokingly refer to you as the “gatekeeper” but you take your job rather seriously nonetheless. Fake IDs are on the rise and the legal department keeps making a big ideal about the potential for audits, fines and other scary things. Guess this isn’t just paperwork after all.
The first two hires are fairly straightforward. They present the usual driver’s license and social security card combo, and you send them on their merry way. The third hire, however, throws you a curveball. She indicates that she is a “lawful permanent resident” in section 1 of the I-9, but the card she presents is unlike anything you’ve seen before. It has “resident alien” on the top, no expiration date, and to make matters even more complicated, the photo shows a much younger woman facing sideways. That can’t be right, can it?
You pull out your trusty I-9 Handbook and flip to the back to see the sample photos. As suspected, none of them resemble the document in front of you. Now what – do you just take it anyway? Ask for another document? Or press the attorney speed dial? The employee is looking rather anxious, so you’d better do something fast.
Back to Reality
The above story was (mostly) fictional. Any resemblance to a hiring scenario at your organization is entirely coincidental…. but not unexpected!
Reviewing documents for I-9 purposes can be very tricky business. As we discussed last week, employers must accept any document(s) from the Lists of Acceptable Documents presented that “reasonably appear on their face” to be genuine and to relate to the person presenting them. If you look at the case law and even the legislative history behind the statute, it seems pretty clear that employers do not need to be document experts in the same way that ICE is when they are conducting criminal investigations.
But what about situations like the above, where the document just doesn’t pass the “smell test”? In those situations, most would argue that the employer does have an obligation to investigate further, while being careful not to engage in any kind of discriminatory behavior. Which, by the way, is why I think the correct answer to the dilemma above is to call the attorney hotline! For another great article on document review, please check out this link from our guest attorney bloggers Sharon Mehlman and Kimberly Best Robidoux.
What else can employers do?
As described in my fictional tale above, many employers will consult the Employer Handbook (M-274), which features several sample images of acceptable I-9 documents, which can facilitate review. The M-274 cautions us however that, “In some cases, many variations of a particular document exist and new versions may be published subsequent to the publication date of this Handbook.” And sure enough, the M-274 does not actually include pictures of the very first I-551 Resident alien card that was issued without an expiration date. Are there any other publications that have these sample images?
Introducing the M-396, Guide to Selected US Travel and Identity Documents
The M-396 is a pamphlet-style book that is published by the ICE Homeland Security Investigations Forensic Laboratory (HSI-FL). The booklet was designed for law enforcement personnel seeking assistance in identifying the various U.S. documents associated with travel, employment and identity. As with the M-274, it contains a non-comprehensive sampling of document images – some appropriate for I-9 purposes, and some not. ICE distributes the guide free of charge (less shipping and handling) by fax order form available here.
Why would I want to use the M-396 if it was designed for law enforcement personnel?
Good question. And ultimately, it’s one that you should discuss with your immigration counsel in planning a comprehensive I-9 policy. But for some organizations, the M-396 can serve as a nice supplement to their existing I-9 document samples. Below is my quick chart of a few notable document samples from the M-396. If you’d like to follow along, please feel free to download an electronic copy of the M-396 here (courtesy of LawLogix).
We often talk about the employer being caught between a rock and a hard place in completing the I-9 form, and the document review process is certainly no different. On the one hand, employers are held responsible for ensuring that their employees are authorized to work in the U.S., while on the other hand, they can be penalized for doing their job a bit too well. What if you rejected the employee’s green card (in my hypothetical above) or demanded to see a specific document? To find the dire answer to that question, simply read this article here.
As Congress continues to debate whether the E-Verify system can actually reduce such issues of document fraud, employers must be careful to craft an I-9 compliance policy, which establishes how closely documents will be reviewed, how and when the M-274 or M-396 will be used, and what escalation procedures should be put in place. As with most such decisions, there is no one right answer for all organizations – but the smart ones will consult with trusted immigration counsel before putting anything down on paper!