More from the IMAGE Conference: DHS Discusses I-9 and E-Verify Developments and Forensic Document Review

Earlier this week, our friends from Greenberg Traurig blogged about the IMAGE Training Conference in Washington, DC, providing a detailed account of the presentations and overall theme of fostering worksite compliance through education and partnership. Today’s blog will briefly highlight some additional “newsworthy” announcements made at the conference and discuss the concept of “forensic document review” as it relates to completing section 2 of the Form I-9.
I-9 Facelift? Many of the attendees at the conference expressed the difficulties they face in properly completing an I-9, especially in light of the fact that the form itself has changed little over the years (while the rules and regulations surrounding it have been in constant flux). Case in point: the M-274 Employer Handbook indicates that an I-9 can be completed well in advance of the start date as long as an offer has been made and accepted. The section 2 certification, however, asks the employer to attest that the employee began (past tense) on the date indicated. I won’t even venture a guess as to how many arguments and discussions this seemingly minor point has provoked, but it’s obviously clear that changes to the form are long overdue. According to a representative from USCIS, a Notice of Proposed Rulemaking will be coming out (probably not until early next year) which will address the I-9 form. In the interim, we can also expect a revised M-274, which is currently slated for October 2010. E-Verify Enhancements Continue As previously blogged, E-Verify has several initiatives in the works including a self-check option for employees and the addition of recent US Passport photos to the system which will trigger the E-Verify photo tool. While on the subject of the photo tool, the speakers also indicated that at least one state is helping them test US driver’s licenses as well. In addition, there were several advanced questions from the audience concerning how to handle FAR deadlines in the event of a merger or acquisition and how to input information for document receipts (in lieu of original documents) when creating an E-Verify case. The USCIS representatives assured us that policies (and answers) are in development on these topics and will be released in a future guide or FAQ. USCIS also announced they will be releasing new versions of the E-Verify manuals again in September. The current manuals (which were most reently updated in June) are available here.Forensic Document Review Day 2 of the conference also featured a representative from the ICE Forensic Document Laboratory, which is the only federal crime laboratory dedicated exclusively to the forensic examination of travel and identity documents. While the I-9 document review process does not necessarily require or call for such a detailed examination, ICE offered the presentation to educate the public on how to spot fake documents by looking for tell-tale visual and tactile clues. For example, several of the newer documents (I-551 permanent residence card and Passport Card) feature color shifting, raised letters, and holographic images which are almost impossible to reproduce. Given the complexity of these documents, most document forgers will simply overlay a new photo onto a real document which might appear valid to the naked (and uninformed) eye. The officer pointed out, however, that most documents should have an integrated (seamless) photo, so these can still be detected with careful review. The officer also provided us with copies of the M-396 Guide to Selected U.S. Travel and Identity Documents, which is also available in PDF here. The Guide is due for an update either this year or next (depending upon budgetary issues). While forensic document review can be an interesting topic (especially if you enjoy using magnifying loops, ultraviolet light, etc), it is important to remember the delicate balance between proper I-9 completion and discriminatory practices. As mentioned in the M-274, “You must examine the document(s), and if they reasonably appear on their face to be genuine and to relate to the person presenting them, you must accept them. To do otherwise could be an unfair immigration-related employment practice. If the document(s) do not reasonably appear on their face to be genuine or to relate to the person presenting them, you must not accept them.” Of course, what “reasonably” appears genuine could vary quite a bit depending upon the person and industry, but the ultimate goal should be to treat everyone consistently and fairly. In the end, it’s always advisable to discuss changes in your I-9 document review policies with legal counsel prior to buying those ultraviolet lights.