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Over-Documentation: The Problem of Belts and Suspenders on I-9 Documentation

[Editor’s note: Today’s blog is courtesy of Allen Orr, Jr. of Orr Immigration Law Firm P.C.]

Across the various I-9 audits that I have conducted since 2000, one of the most common, non-correctable errors is over-documentation. By law, an employer should only accept either a List A document or a combination of List B and List C documents, but not both. Over-documentation occurs when an employer records a List A document and any combination of Lists B and C documents on the I-9 form. Over-documentation most often results in two different scenarios:

Scenario One: Employee Volunteers Multiple Documents

In this scenario, the employee provides multiple documents such as a U.S. passport (List A document), a state driver license (List B document) and a Social Security Card (List C document). Rather than informing the employee that he or she must select the appropriate document(s) for verification, the HR or hiring professional simply records all of the documents on the I-9 form. This would constitute an over-documentation of the I-9 Form.

Scenario Two: Employer Requests Alternative Documents

Another scenario occurs when the employee has appropriately presented either a List A document or List B and C documents, but for whatever reasons, the HR or hiring professional is requesting the employee provide List A, B and C documents. (It is important to note that Scenario 1 or 2 can occur during the re-verification of documents in Section 3, which can also lead to over-documentation.)

What’s the Danger of Over-Documentation?

Once too many documents have been recorded on the I-9 form, over-documentation has occurred. Unless discovered and corrected immediately, over-documentation constitutes a permanent error. Since 2011, the Department of Justice’s Office of Special Counsel for Immigration Related Unfair Employment Practices has increased its enforcement of employer violations by focusing on the rising number of pattern or practice claims. An organization with many over-documented I-9 Forms could be considered to exhibit a pattern or practice of discrimination. In fact, the U.S. Department of Justice prosecuted high profile cases involving the UC San Diego Medical Center, Farmland Foods and Catholic Healthcare West(CHW) in the past couple of years, which uncovered numerous patterns of over-documentation by the employers.

Steps to Mitigate and Prevent Over-Documentation

  1. Employers should work with an experienced employment or immigration attorney to conduct internal audit of its I-9 Forms. Experienced counsel can help employers:
  2. Identify the number of over-documented I-9 Forms;
  3. Evaluate those I-9 Forms to determine if there was a patterns of non-compliant practice;
  4. Remediate non-compliance I-9 Forms;
  5. Create an organization-wide non-discrimination policy;
  6. Provide refresher training for all hiring professionals on I-9 processes;
  7. Assist in evaluating electronic I-9 systems that are well-designed to prevent over-documentation errors.

Avoiding over-documentation is equally important as ensuring the right type of documentation is recorded. The best defenses against over-documentation is having well-trained staff members, an attorney-approved electronic I-9 software system and a regularly enforced I-9 policy.

Human Resources Today