Form I-9 Alert: Dealing with Faulty Green Cards
If you’ve ever been tasked with completing a Form I-9 on behalf of a new hire employee, you probably know that an integral part of the process is reviewing the identity and employment authorization documents which demonstrate your new hire’s eligibility to work in the United States. Specifically, you need to ensure that the documents on their face appear to be genuine and relate to the new hire employee presenting them.
Sounds simple enough, right? Especially when you consider that DHS has long stated that you don’t need to be document experts (or forensic analysts for that matter) when it comes to reviewing documents, and that ultimately a “reasonableness” standard should apply.
But what happens when the document you are reviewing has a clear error on its face, and as it turns out, the error was actually caused by the government? Can you (should you?) accept this document, and if so, how do you complete the I-9 and E-Verify process?
Read on to learn more about a recent report on errant green cards and best practices for resolving document discrepancies!
Office of Inspector General Report
The Department of Homeland Security Office of Inspector General (OIG) recently published a new report concerning the trials and tribulations of issuing so-called “green cards” to lawful permanent residents in the United States. Apparently, the OIG had conducted a system wide audit of all immigration benefit applications processing in 2015, and had decided to perform a follow-up specifically with respect to green cards (in light of potential security concerns).
The results were less than stellar. According to the lengthy follow-up report published on November 16, 2016, the United States Citizenship and Immigration Services (USCIS) faces a number of technical and procedural challenges in issuing green cards, due in large part to the agency’s Electronic Immigration System (“ELIS”) which first launched in 2012. While the vast majority of green cards are issued without error, the number of errant documents and the nature of the errors are still quite troubling (especially if you complete I-9s for a living).
Green Cards Issued with Incorrect Data
According to the report, USCIS mistakenly sent out nearly 13,000 green cards with incorrect personal information between July 2013 and November 2015. Here are a few examples (which are particularly problematic for I-9 and E-Verify purposes):
- Incorrect expiration date (should have been issued with 2-year validity, but provided 10-years instead)
- Incorrect names (e.g., cards printed with “No Given Name” as their first name and with their first and last names combined as the last name).
- Incorrect dates of birth (during one period of time, all green cards were generated with January birth dates)
- Mismatched photos and id’s (a technical glitch enabled random association of photos across multiple family members – this one alone could lead to a very interesting onboarding conversation)
Green Cards Issued in Duplicate
Even more concerning (from a national security perspective), the OIG report identified more than 6,200 duplicate green cards had been sent to customers during the past year alone (again, due to technical errors). The chief culprit, according to the OIG, is the rather fragmented and disconnected nature of the various USCIS systems – leaving the USCIS no choice but to implement manual cross-checks and intervention to detect duplicates in the green card process. And as the OIG noted, quite a few continue to fall through the cracks.
Missing Green Cards
Last but not least, the USCIS received over 200,000 reports (during a three-year period) from applicants claiming that they never received their green cards in the mail. While the exact cause of each delivery failure may vary, the OIG suspects (based on a joint study with the US Postal Service) that many were actually delivered as addressed – meaning either the applicant had moved, the card had been stolen, or it simply fell into the abyss of missing documents that we’ve all experienced at one point or another.
Based on the evidence collected, the OIG issued a series of recommendations to prevent green card issuance failures (and the USCIS concurred in all material respects). In particular, the OIG recommends improving ELIS functionality, developing internal USCIS controls to spot issues and standardize card recovery/tracking, and enabling remote identity verification and more secure delivery methods.
Green Card Issues – Impact on the I-9 and E-Verify Process
Regardless of the cause or nature, green card issues are particularly problematic for new hires and employers during the I-9 and E-Verify process. Employers may (understandably) scrutinize and question the presentation of a green card that has a noticeable error such as an incorrect name or mismatched birth date. And the E-Verify system may complain as well (through its tentative nonconfirmation process) if the information entered does not match the underlying data stored in their systems.
Perhaps worst of all though, employees may find themselves in the unenviable position of defending their choice of document and seeking correction of a mistake which may not be entirely known to them as well. Or just as bad, they may be forced to obtain other acceptable documents while they wait for the green card to arrive.
So how does one navigate this potential landmine of issues? Here are some best practices worth considering and discussing with your counsel:
- First and foremost, it’s important to remember that employers do not need to become document experts when reviewing identity and employment authorization documents. The long-accepted standard is whether the document reasonably appears to be genuine and relates to the employee presenting it. So for example, if you notice a slightly different spelling in name on the green card, you may ask your employee about the discrepancy and then choose to accept it if it meets your reasonableness standard. This is admittedly a fuzzy concept, which is why it’s so important to involve counsel in tricky document situations.
- If E-Verify returns a tentative nonconfirmation (TNC), you must give your employee every opportunity to contest the TNC and allow them to continue to work while he or she resolves the mismatch. In addition, you should not take any adverse actions against the employee, such as delaying training, reducing work hours, etc.
- If an employee informs you that his or her green card is missing, you may (in certain circumstances) accept a receipt which demonstrates that the employee has applied for a replacement document. Or, your employee may choose to present a temporary I-551 document which evidences proof of his or lawful permanent resident status (such as a foreign passport with I-551 stamp, I-94 with I-551 stamp, etc.).
- Always keep in mind that lawful permanent residents may present other combinations of documents to prove both identity and work authorization (e.g., a driver’s license and unrestricted social security card). Make sure that you NEVER specifically request that an LPR present a green card – this is known as document abuse, and as we’ve described many times in the past, will get you into serious trouble.
- Completing I-9s for non-citizens can be tricky, particularly when you consider the sheer complexity of US immigration law and combine it with the fast-paced nature of today’s US hiring trends. In order to prevent issues (and standardize your practices), experts recommend using a specialized I-9 and E-Verify software application which was designed by attorneys in the field. A well-designed system will not only catch obvious mistakes but also help you enforce standardized rules across your organization.
Have a question relating to this alert or I-9/E-Verify compliance in general? For a demonstration of our electronic I-9 system, please feel free to contact us here. You can also reach me by emailing at the address provided in my bio link below.
John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.