During last week’s keynote speech at the Second Annual Worksite Immigration Compliance Symposium, ICE Director John Morton mentioned that in the midst of the rising use of fraudulent documents and identify theft, he encouraged employers to enroll in E-Verify to ensure that the documents used were authentic. Despite Director Morton’s recommendation though, the sentiment of many organizations is that their HR workforce must exercise some form of “document expertise” during the I-9 verification process that leaves many HR personnel with questions and concerns. In this regard, I asked three (prominent) immigration attorneys who practice I-9 compliance the following question and received different perspectives:
Our first response comes from Christian Zeller, Partner at Maney Gordon, P.A. in Tampa, Florida. Mr. Zeller attended the Symposium last week and told me this question is actually quite popular amongst his clients. He takes a practical approach:
You do not have to be a document expert, but rather you must act in good faith because good-faith compliance remains the best statutory affirmative defense against a “knowingly hired” charge.
From a practical perspective, Mr. Zeller helps his I-9 clients demonstrate good faith when they check documents by providing them with a bound color copy of the M-274 Handbook and instructing them to refer to it often.
The Handbook specifically states that if documents reasonably appear on their face to be genuine and relate to the person presenting them, the employer must accept the documents.
For most employers, the above advice may be enough. For other employers though, they may seek something more formalized. Our next response is provided by Kevin Lashus, Managing Partner at Jackson Lewis LLP in Austin, Texas. Mr. Lashus recently wrote an interesting article about document fraud in the workplace after attending a House Immigration Subcommittee hearing on Immigration Policy and Enforcement. One way to get “document expertise” right is to provide staff members training.
If an employer chooses to invest [in forensic training], it will likely receive significant deference if it were ever the subject of an investigation. Moreover, the training will likely result in a significant drop in the incidence of employees attempting to use fraudulent cards because, as the word gets around, fewer and fewer prospective hires will attempt to present a fake card.
However, Mr. Lashus warns, there are risks to a formal training approach:
Either getting the opinion wrong (i.e. the card is NOT a fake) OR not using the forensic training (e.g. the trained specialist was out-on-leave and her substitute didn’t forensically examine the card) exposes employers to greater liability than a situation where an employer chose to NOT invest in the training.
Employers should definitely be aware that forensic training will come with certain risks as well as benefits. It’s best to weigh the options and make an informed decision with counsel before embarking on any formal compliance strategies. According to Wendy Padilla-Madden, Counsel at Balch & Bingham LLP in Birmingham, Alabama, the standard has always been one of reasonableness. Ms. Padilla-Madden indicates that the standard is “What would a reasonable employer similarly situated do?” She provides us with an analogy:
This line is probably higher than the standard of a bouncer at bar who has to determine if an ID presented is legitimate to allow for entrance … but much lower than an attorney or ICE agent.
Having conducted multiple audits (over 30,000 I-9 Forms), Ms. Padilla-Madden cautions us:
At a minimum, employers must look at the document carefully. Obvious issues like misspellings, crooked lines and pictures that are out of focus should dictate that a document be rejected. Some of the more technical security features that would require the use of a blue light or magnifying glass would be going too far though.
The rule-of-thumb Ms. Padilla-Madden advises is for employers to develop a systematic way for its team members to learn how inspect documents so that each team member is applying a clear and consistent standard.
Suffice it to say, different experts will have differing advice and opinions. I would like to thank our experts for their insight. Notwithstanding their varying advice above, they all agree that while employers don’t have to be document “experts,” there is an expectation that employers should respond to potential document fraud like a reasonable person would. One way to accomplish this is by implementing a document inspection strategy that makes sense for your organization; whether it’s following instructions from the M-274, using a formal training program, or consistently abiding by a written (and practical) procedure.