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.

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