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:
“When corporate clients ask if they need to be ‘document experts’ when it comes to the I-9 verification process, how do you counsel them?”
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.
The Takeaway?
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.
To discuss this topic further or learn more about how an Electronic I-9 compliance & E-Verify system can help you meet federal and state law requirements, please call 877-725-4355 or click here. Our electronic I-9 experts and trusted attorney partners will be happy to address your unique I-9 and E-Verify challenges.
I have been a Lawlogix client since 1-1-08 and for the most part have found your e-news material helpful. However, Ms. Padilla-Madden’s advice seems to be out of touch with my reality. I often see bouncers using a blue/black light’s when looking at ID’s. Second, having been to a recent IMAGE presentation here in Phoenix it was made clear that ICE expects or at least encourages us to use a blue/black light since one was used during their hands on demonstration. Several ID’s and the blue/black light were passed around to all attendees and we were shown through the slide presentation what security identifiers to look for using the blue/black light.
I understand that failing to use a blue/black light in and of itself would not constitute a lack of reasonable intent, however, I take great issue with her claim that a company choosing to use one would be “going to far.
Dear Mr. Fleck,
Thank you for your comment. I suppose there are all different kinds of bouncers these days (I have to admit, I have not been carded in a while) so in some instances the processes used by these modern bouncers may indeed be higher than what is required of employers for I-9 purposes.
I think it is important to keep in mind that there is no one single process that meets the reasonableness standard. I believe the process followed by the employer should be analyzed by what other similarly situated employers do. When advising clients we generally look at many factors like the size of the employer, level of sophistication, the make-up of the applicant workforce, industry, and many others in order to determine what is the best process for them.
You make a great point regarding ICE and IMAGE presentations. I have been to several of these outreach events in the past year and have felt compelled to comment when the inference is made that the “blue/black-light” standard is what the law requires. Again, in my opinion and I venture to say that many of my colleagues opine in a similar fashion, such a requirement, when presented as a minimum standard for employers just goes too far. I do not believe that in general an employer who in good faith is attempting to comply with these regulations must use a “blue/black-light” to determine if a document reasonably appears on its face to be genuine and relate to the person presenting it. In some instances, it may be advisable, like for example if the employees will be working at an airport or other secure facility, but probably would not be a reasonable process for most employers through out the country. If setting up a process like this, the employer must also be careful to use the same standard of review for all documents presented, picking and choosing could open up a whole other set of issues related to discrimination.
The other side of this coin is that employers who adopt very rigid document review standards may improperly reject good documents – which can happen easily given the variety of DLs and other documents out there. In those scenarios, they can get into trouble with the Office of Special Counsel. Some employers may be able to handle it without issue – but there’s definitely a fine line between proper I-9 document review and impermissible “document abuse” as they call it.
I hope this clarifies my comments. Thanks for starting a good discussion on this.
Thank you for both your comments!
Mr. Feck, you highlight a great example of how U.S. employers, when faced with the gargantuan task of navigating through I-9 compliance rules and regulations, at some point must decide on strategy for internal document inspection after weighing various factors.
Given how diverse our workforce is in this country, I think Ms. Padilla-Madden also makes a good argument that every employer is different, which is why the “reasonable” standard will probably vary slightly from one employer to next.
I had the benefit of asking three immigration attorneys this question, who all had slightly different answers. I think if I polled employers out there on this issue as well as different ICE officials, they too would probably come up with slightly different answers. (This is probably what keeps me so busy writing about this area). Thanks so much for reading and commenting.