What’s in a name? Resolving Form I-9 document discrepancies
One of the greatest paradoxes of Form I-9 compliance is that it takes 15 pages of instructions and a 70+ page manual to describe how to complete a relatively benign-looking 2-page form. Although this notion may seem absurd at first, employers quickly come to learn that the I-9 is much more than a simple onboarding form – in fact, it’s just one piece of a larger verification process that must be undertaken by every US employer. HR and hiring managers need to learn not only about the I-9 “paperwork” but also the verification process, various timelines, protocols for updating and correcting, as well as rules relating to document retention (to name just a few).
Even the most seemingly simple questions on the I-9 can raise thorny compliance issues. Case in point: the first four questions in section 1 ask an employee to provide his or her name (including last name, first name, middle initial, and other last names used if any). Surely this must be the one area of the form that is completely without controversy or nuance, right?
Shakespeare teaches us that a rose by any other name would smell as sweet, but alas, the same cannot be said for the Form I-9. The section 1 name fields in particular present a potential landmine for employers who are tasked with ensuring they hire and employ a legal workforce. Variances and discrepancies between what your employee writes on the I-9 and the documents that he or she provides may be harmless error, or perhaps indication of something more. Employers participating in E-Verify must also consider the various “naming” rules imposed by the system in order to avoid the dreaded TNC.
In an effort to demystify the Form I-9 naming conundrum, this blog will briefly summarize the various policy guidance from the USCIS regarding completing the section 1 name fields and accepting documents that don’t always match up.
The Last Name (aka family name or surname)
Both the Form I-9 instructions and the M-274 Handbook provide guidance on how an employee should write his or her last name in section 1 of the Form I-9. While this may seem like a no-brainer, complications can often arise when names appear differently on various official documents or the new hire has changed his or her name due to marriage, divorce, or other legal reason (of which there are many). It’s also worth noting that certain cultures use different naming conventions – for example, the “last” and “first” names may be interchanged or the individual’s last name (or surname) might consist of the father’s first surname and the mother’s first surname. Lastly, the E-Verify system also has certain naming rules and limitations with respect to the last name field.
Keeping those issues in mind, here are the various rules relating to the “Last Name” field:
- Employees should enter their full “legal” last name, which is also referred to as the family name or surname. While neither the M-274 nor the instructions define what constitutes one’s “legal name”, this will generally mean the name recorded on a government-issued document such as a birth certificate, passport, court order, etc.
- If the employee has two last names or a hyphenated last name, the instructions indicate to include both names in the Last Name field. Examples of correctly entered last names include De La Cruz, O’Neill, Garcia Lopez, and Smith-Johnson.
- The Form I-9 and M-274 also include a new instruction relating to situations when the employee only has one name. In these situations, the employee should enter the name in the last name field and then enter “Unknown” in the first name field. While DHS had previously instructed employees to use “LNU” (last name unknown) or FNU (family name unknown), the agency recently noted that the use of “Unknown” would reduce uncertainty and lead to fewer E-Verify TNCs.
- Speaking of E-Verify, the USCIS also includes the following additional instructions (not present on the I-9 instructions or M-274) for entering a surname into the system: Employers should avoid writing periods (e.g., St. John should be written as St John) and exclude name suffixes (e.g., Jr., Sr., III, etc.).
The First Name (aka given name)
As with the last name field, employees are instructed to write their full “legal” first name which is also referred to as one’s given name. Spaces, hyphens, and apostrophes are allowed, and employees with two names should enter both in the First Name field (according to the M-274). The USCIS provides the following examples of correctly entered first names: John-Paul, Tae Young, and D’Shaun. As mentioned above, employees with only one name are instructed to write “Unknown” in this field.
While the E-Verify interface does not include any specific instruction or warnings relating to the first name field, the USCIS has indicated on other occasions that employees with two first names should make sure to include both in order to avoid an E-Verify TNC.
The Form I-9 instructions indicate that your middle initial is “the first letter of your second given name, or the first letter of your middle name, if any.” The reference to a “second given name” in this field is a bit confusing, considering that many employees will have already provided this name in the first (given) name field according to the instructions above. When in doubt, employees should try to record the correct name combination as indicated on their government-issued identification document(s).
Employers should also remember that the USCIS now strictly requires the employee to enter “N/A” if he or she does not have a middle name.
Other Last Names Used
Last but not least, we have the ever-popular and constantly evolving “Other Last Names Used” field where employees are instructed to provide “all other last names used, if any.” This field had previously been labeled as “Maiden Name” until 2013 when the USCIS changed it to the more gender-neutral “Other Names Used” designation.
In the most recent incarnation of the Form I-9, the USCIS narrowed the requirement to other “last” names only while explaining that this change was designed to reduce the possibility of discrimination and to protect the privacy of transgender and protected individuals (such as victims of crime, who may have changed their first names). As revised, if an employee legally changes his/her last name from Smith to Jones, he/she should enter the name Smith in this field.
As with the other “name fields”, the USCIS strictly requires an answer – meaning the employee should write an additional last name used or enter “N/A” if not applicable.
Frequently Asked Questions – Reviewing Names on Documents
Employers and employer representatives may run into additional “naming” complexities and questions when reviewing an employee’s identity and work authorization documents as required under the I-9 process. It’s well settled that employers are required to accept documents which reasonably appear to be genuine and relate to the person presenting them, but what happens when there are naming discrepancies on the documents or inconsistences with information provided by the employee in section 1? Can an employer accept these at face value or is further scrutiny warranted?
Here are a few common scenarios along with guidance provided by USCIS.
(1) Employee presents documents with different last names
A new employee Barbara Smith presents a driver’s license and unrestricted social security card during the I-9 process. The employer notices that the driver’s license indicates Barbara Smith, but the social security card indicates Barbara Jones.
According to guidance provided in the M-274, an employer may accept a document that shows a name which is different than what was entered in section 1 as long as the employer resolves the question of whether the document reasonably relates to the employee.
For example, Barbara might explain that she recently got married and hasn’t updated her social security records. In accepting these documents, the USCIS recommends that you attach a brief note to the I-9 which explains the discrepancy along with any supporting documentation provided by the employee (but note, the employee is under no legal obligation to provide such proof).
Alternatively, if an employer determines that the document with a different name does not reasonably appear to be genuine and/or relate to the employee, an employer may request another acceptable document.
(2) Employee entered two last names in Section 1, but the documents presented contain only one.
Imagine your new hire employee has written Perez Marquez as his last name in section 1 and provides you with one or more documents which contain only Perez. As with the prior scenario, the USCIS notes that you may accept the document(s) as long as you are satisfied that they reasonably appear to be genuine and relate to the employee presenting them.
(3) The name on the employee’s document is spelled slightly differently than the name they entered in Section 1 of Form I-9.
The USCIS notes that if the document contains a slight spelling variation, and the employee has a reasonable explanation for the variation, the document is acceptable as long as you are satisfied that the document otherwise reasonably appears to be genuine and relates to the employee presenting it.
(4) The employee has chosen to use a nickname in Section 1, although the documents presented reflect the individual’s full name.
Every once in a while, you may have an employee that prefers to use a nickname rather than a full legal name. While many HR departments may allow the use of a “preferred name” for employee directories and other less formal communication, the USCIS has noted that the employee must enter their legal name in Section 1 of the Form I-9.
In the near future, we’ll discuss other unique I-9 issues relating to rehires, the presentation of new documents after hire, and other potential signs of mismatches.
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