When I-9 and E-Verify Rules Clash: Accepting Only List B Documents with a Photo

For many employers, E-Verify is a relatively new concept – an extension if you will, of the basic I-9 process for verifying employment eligibility in the U.S. To its credit, DHS has provided a lot of publicly-available documentation about E-Verify in the form of manuals, videos, tutorials and FAQs. Occasionally, however, employers may find an area of E-Verify which seemingly contradicts an age-old I-9 practice, and alarm bells go off. Which rule do I follow? And what are the potential consequences on either obligation? Today, we’ll briefly explore one of these areas (accepting only List B documents with a photo) to hopefully shed some light on the issue and provide ideas to prevent potential problems. I-9 vs. E-Verify The initial source of confusion for E-Verify employers is right there in big bold letters at the top of the I-9 form: Employers CANNOT specify which document(s) they will accept from an employee. But, if you are an E-Verify employer, you’ve also signed a contract with DHS and SSA, agreeing that if an employee presents a List B identity document, you will only accept a document which contains a photo. By implementing such a policy, are you somehow violating the antidiscrimination provisions of the law? If you ignore that provision, are you violating the E-Verify Memorandum of Understanding (MOU)? Guidance from OSC Fortunately, this exact issue was raised with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) last year, and they responded that an employer could implement a policy to accept only List B documents with a photo (without violating the I-9 law), since the employer is acting to fulfill its contractual obligations (under E-Verify), rather than with an intent to discriminate. The key element here is the “intent” factor – under these limited circumstances AND if there is no intent to discriminate, you can implement the Photo-only List B document policy. To read the entire correspondence with OSC (including a related question on whether making copies of only the EAD and green card is discriminatory), please click on this link.Best Practices Although it’s nice to know that OSC will not frown upon your photo-only List B document policy, employers may wish to communicate this message to its employees ahead of time to prevent any potential claims of discrimination. For example, some E-Verify employers are handing out the “Employee Rights and Responsibilities under E-Verify” document which specifically notes that if you present a List B document to an employer that participates in E-Verify, that document must include a photo. Employers using electronic I-9 online systems may also have additional notification templates available for those employees who login to complete section 1. For example, the system could prompt new hires that a List B document must contain a photo (but only if the employer is participating in E-Verify) and also include links to the USCIS web site for the latest “rights and responsibilities” information. Using a method such as this allows employers to proactively manage this seemingly contradictory I-9/E-Verify rule and reduce uncertainty (and potential problems) in the process. 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.