To Copy or Not to Copy: Is that the Question?
[Editor’s note: today’s blog is courtesy of Gary Endelman of Fong & Associates LLP].
One of the great questions plaguing the human race over the past 2 decades is whether or not to copy supporting I-9 documents (i.e., those documents presented by an employee to demonstrate identity and US work authorization). This thorny question is not to be approached lightly but is best answered after a lengthy period of reflection and prayer. Immigration experts are themselves divided on this issue, so there is no right or wrong approach. While the majority view favors copying the documents, there are reasons to be wary. Let’s take a closer look.
Why would any employer want to make copies of an employee’s I-9 documents? Well, for one thing, it might help show good faith to a suspicious ICE or DOL auditor in the event of an investigation. Sure, my employee did not have authorization to work, but how was I to know? The documents looked OK – see, I have a copy right here! This tends to diminish, though certainly not eliminate, the chances that a charge of knowingly employing an undocumented alien would be brought. Besides, the employer took his responsibilities seriously and did not wait until the last minute to find out if his workers were legal. The copies show that attempts at compliance were timely even if flawed. Making copies might make an unscrupulous manager or HR representative think twice before hiring family or friends who worked without authorization. Consider another point. How would even the most agile advocate prove that her client did not accept fraudulent documents if there were no copies to examine? It is doubtful that argument without evidence would prove sufficiently persuasive.
Under current ICE enforcement guidelines, retaining copies of I-9 documents could lower substantive violations into less serious paperwork ones, particularly if the titles, numbers or expiration dates of these documents have not been properly or completely recorded in section 2 of the I-9 form. Copies could also facilitate internal I-9 audits conducted by the conscientious employer as part of a regularly scheduled compliance regime, something that really impresses our ICE brethren. While making copies is not an affirmative defense against liability, the Department of Justice, Office of the Chief Administrative Hearing Officer (OCAHO) has accepted it as a mitigating factor in the imposition of financial penalties. Back-up documentation can also come in handy as a defense against discrimination claims if the Office of Special Counsel develops an interest in your hiring or termination practices.
And then, sometimes you HAVE to make copies. Federal contractors and other E-Verify employers must reject List B identity document that do not contain a photograph and must copy the following documents if presented: a Form I-551 “green card”, a Form I-766 employment authorization document, or a US passport in order to compare the photo on the document with the photo in the E-Verify system. Doing so is not discriminatory, so no worries there. In addition, Colorado employers have been under a state law mandate since January 2007 to make photocopies of identity and employment authorization documents for all new employees.
In all these cases, copies cannot be made on a selective basis. To copy the documents of one employee is to copy everyone’s documents. Be sure not to put the copies in the employee’s personnel file since they contain references to age, gender and national origin. It’s better to attach the copies to the I-9 form itself. The prudent employer will not fall into the dangerous but hugely mistaken fallacy of believing that making copies obviates the need for strict and unwavering I-9 completion. Nothing could be more wrong and more costly. The employer remains under a strict obligation to complete section 2 of the I-9 in all its many particulars. While we are on the subject of cautionary reminders, let us remember that copies of I-9 documentation can only be used for this limited and specific purpose; none other is allowed.
We all know that no good deed goes unpunished. What if you record and retain unacceptable documents such as restricted social security cards or documents that are obviously fraudulent? The last thing you want is to give ICE evidence to use against you during an audit or sketch out a road map for Sherlock Holmes to pursue. There are also privacy concerns that could be triggered by taking actions that, however prudential, are not mandatory. If the employer does not have serious problems, and is not under investigation, the absence of documents is more easily tolerated than might otherwise be the case. Selective document reproduction raises troubling and potentially actionable allegations of discriminatory conduct. The destruction of documents in adherence to a well-established program of document retention is acceptable assuming the absence of a legal hold or the presence of aggravating circumstances.
In the end, this can be a case by case determination and is usually best decided by the good faith exercise of sound business judgment. All else being equal, I say copy the documents and play the odds! Disclaimer: The information contained in this blog post is provided for educational purposes only, and should not be construed as legal advice or as a substitute for legal counsel. If you have questions concerning how I-9 and E-Verify rules apply to your specific situation, please seek legal advice from a licensed professional attorney who is familiar with all of the facts.