Immigration Compliance: Problem of I-9 Over-Documentation

Immigration related compliance is an increasing concern for U.S. employers, who are often caught between two federal agencies with opposing interests: ensuring that all workers are authorized for employment in the U.S. and protecting those who are lawfully here from discrimination.

The Immigration Reform and Control Act of 1986 (“IRCA”) requires all employers to fill out an I-9 form for all employees hired regardless of their immigration status. Employers must accept verification documents if they appear “reasonable genuine” and related to the person presenting the documents. However some employers who might be fearful of being penalized for hiring undocumented workers may intensely over-scrutinize documents of some workers who look or sound “foreign”. The anti-discrimination provision of the Immigration and Nationality Act law bars employers from demanding more or different identification documents from employees based on workers’ immigration status and prohibits employers from limiting those workers’ choice of documents.

The I-9 regulations state that the employers can accept only a List A or a List B and List C documents. Both not both.  If an employer requests (or employee volunteers) more documents than necessary, over-documentation occurs. Employers who do not want to risk claims of discrimination should work to immediately remedy non-compliant I-9 forms and should engage in a company wide I-9 training for all hiring professionals.

In the most recent enforcement decision, on June 27, 2013, the department store chair, Macy’s has agreed to pay a $175,000 civil fine and improve its practices to resolve a U.S. government probe that found the retailer had discriminated against immigrant employees when verifying their eligibility to continue to work. The U.S. Department of Justice said that Macy’s had engaged in “unfair documentary practices” against some immigrant employees who had previously been authorized to work.

Employers must be aware of the increased government enforcement in this area and should act to if they do not want to find themselves the subject of tomorrow’s headlines. They should provide training to all employees who are involved in the hiring process to ensure that prohibited acts of discrimination do not occur. Capitol Immigration Law Group routinely assists employers with creating an organization-wide non-discrimination policy and providing training for all hiring professionals on I-9 processes. If our office can be of any help, please feel free to contact us.