Dont Overdo It! This thing called Over-documentation

Recently, the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), which enforces the anti-discrimination provisions of the Immigration and Nationality Act (“INA”), issued a technical assistance letter providing guidance on what is called “over-documentation.” 

Over-documentation occurs when an employer requests or accepts more documents than required for the proper completion of Section 2 of the I-9 form.  For example, an employer might record a U.S. Passport, which is List A document, and also a social security card, which is a List C document.  Because an employer need only record either a List A or a List B and List C document, such action would constitute “over-documentation.”

It’s a common thing by employers. I see it all the time.  Here’s what the OSC said about this practice:

  • “An employer may violate the anti-discrimination provision of the INA if it requests more or different documents or rejects reasonably genuine-looking documents on the basis of citizenship or immigration status or on the basis of national origin during the I-9 process.”
  • “If an employer requests more than one List A or a combination of one List B document and one List C document, a violation of the anti-discrimination provision of the INA will depend upon whether the employer made any of those requests because of an employee’s citizenship or immigration status or because of an employee’s national origin.

Based on my experience, most employers that have over-documented their I-9s have not “requested” more documents than required, but instead, have simply just recorded everything the employee gave them. So, that raises the question of what should an employer do if an employee hands them numerous acceptable documents for the I-9 completion.

Here’s my suggestion:  Either tell the employee exactly what you need (i.e., a List A or a List B and List C document), and let the employee then choose what to provide, or just grab the document(s) that you need and not record the rest.

Just remember with I-9 completion, more is not better.

You Can’t Do Indirectly What You Can’t Do Directly

The news about Grand American Hotel paying $1.95 million to settle ICE fines because some of its managers created employment agencies to rehire unauthorized workers is a reminder to employers that you can’t do indirectly what you cant do directly.  Apparently, a previous ICE audit resulted in the termination of numerous unauthorized workers from the hotel, but some hotel managers thought they could beat the system by hiring these same workers through some type of leasing agency.  It didn’t work.

The issue isn’t uncommon.  During an ICE audit, an employer may receive a notice stating certain employees are not authorized to work.  Sometimes the employer may have a properly completed I-9, but the employee has provided fraudulent or suspect documents.  These employees may be terminated as a result.   When an employer loses a large percentage of its workforce, it often looks for ways to keep the business running as it had before.

Ive been asked, Can we have these terminated employees go work for a temp agency and come back to work for us?  The answer is, Absolutely not!  The employer already has actual knowledge that these individuals are unauthorized.

The Grand America Hotel news also is a reminder to employers that the immigration-related compliance of its contingent workforce (e.g., independent contractors) in general is important.  Employers should no longer feel any comfort with the fact that the contingent workers are not technically W-2 employees, especially if there are indications (e.g., constructive knowledge) that such individuals are unauthorized.

What should employers do?

  • Have concrete contractual provisions with its independent contractors and leasing agencies relating to immigration compliance; and
  • Consider auditing its contractors to ensure they are doing what they are legally required to do to ensure their employees are authorized to work.