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.

Lessons Learned for Employer Following ICE Notice of Intent to Fine

Recently, we assisted a new client who had received a Notice of Intent to Fine from ICE following an I-9 inspection.  It was a sad situation.  This client had a slim profit margin and the amount of the fine was potentially devastating to the business.  It’s rare that we have a client cry in an initial meeting regarding I-9s like this one did.  (We certainly have had many who have wanted to cry or had reason to).

Fortunately, after we reviewed what the client had submitted to ICE through the inspection process, we were able to make some arguments and negotiate to reduce the fines by almost 50% and obtain a reasonable payment plan.

From this experience, here are some lessons this employer learned the hard way.

  • It is impossible to correct I-9 deficiencies after ICE comes knocking.  Once ICE serves its Notice of Inspection, you only have three business days to respond.  Besides not having time to make corrections in that short time period, ICE may not view such corrections as valid because they happened after the Notice of Inspection occurred.  So, get your I-9s completed and corrected before you are audited.
  • Calling an attorney after you are issued a Notice of Intent to Fine is like calling a plumber after your house is flooded.  The plumber may be able to fix the problem going forward, but most of the damage is already done.
  • Some fines can be avoided if you know the rules relating to technical and substantive violations, how to properly correct I-9s, the benefits of presenting copies of the documents associated with the I-9s, and the significance of no-match letters.  If you are going to rely on the ICE auditor to teach you, just forget it, which brings me to the last lesson….
  • The ICE auditor is not your friend.  She may say that education and compliance is the main goal, but you will be fined if a fine is possible.  She may even say that you should not worry about being fined during the process, and then fine you anyway.

Our client still benefitted by obtaining counsel after receiving the Notice of Intent to Fine.  We could have done so much more, though, had we been involved prior to and during ICE’s inspection.

The Key to E-Verifys Lock Out Enhancement

The U.S. Citizenship and Immigration Services (USCIS) recently announced an ehnacment to the E-Verify program to combat identity fraud with respect to social security numbers.  Basically, USCIS will lock social security numbers that appear to have been fraudulently used.  If an employee provides a locked social security number while completing the I-9 form, E-Verify will generate a Tentative Nonconfirmation (TNC), which then will require the employee to contest the TNC at a local Social Security Administration field office.

Prior to this enhancement, USCIS believed it was more likely that a stolen social security number would not raise any red flags or result in a TNC, if the employee also provided the name and date of birth of the individual to whom the social security number belonged.  Thus, for example, if I stole the name, date of birth, and social security number of John Smith, I may get through the E-Verify process with no problem, because there was no mechanism to catch that the social security number had been stolen.

Combating identify fraud is something everyone can support, but here are the  bad news for E-Verify employers.  Multiple TNCs may result in USCIS sharing such information with ICE, which in turn may result in an audit of the employers I-9s and other work authorization processes.

So, here is the key to the lock out.  Employers must focus on I-9 compliance first and foremost. Specifically, employers should make an honest effort to examine whether the original documents presented by the employee appear to be genuine and belong to the employee. If the employee chooses to present a social security card  as a List B document, pay close attention and make sure it appears to be genuine.  (In conducting audits, I have seen many fake social security cards that even my 10 year old could have spotted.)  If its reasonably clear that the documents presented are fake, the employee should not even get through the I-9 process, thus avoiding the social security number being run through E-Verify.

E-Verify employers who ignore or dont even try to identify fake documents and thereby rely on E-Verify as a safety net are making a mistake.  It is no safety net, and the fact you used E-Verify and the employee does not receive a TNC will provide no immunity from liability if it turns out that the documents presented by the employee, including the social security card turn out as fake as monopoly money.  Obtaining some basic training on spotting fake documents will go a long way for E-Verify employers, now more than ever.

Also, employers must remember that the employee has a choice of what documents to present. Requiring an employee to present specific document to avoid a TNC  likely will be considered document abuse.  As we have discussed in prior posts, the Office of Special Counsel receives statistical analysis from E-Verify regarding the types of documents presented by employees and initiates enforecement actions when they find patterns that suggest an employer is mandating a particular set of documents be presented for I-9 purposes.

 

So What Can You Request of Your Contractors?

Recently, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a technical advisory letter in response to a subcontractor inquiry who was facing a difficult question by its general contractor on the project.  The general contractor requested  the subcontractors employees, prior to being allowed to work on the project,  to provide the original documents (e.g., U.S. passport, drivers license, social security card) that were provided to the subcontractor during the I-9 verification process.  The subcontractor asked the OSC if such practice was permitted, and if not, what remedies were available to the subcontractor for the general contractors alleged improper request.

The OSC punted on responding to these questions directly.  While stating that it is not allowed to provide an advisory opinion on any set of facts or involving a particular individual or entity, the OSC did say that:

(a)  there were practical issues or problems associated with the general contractors request to have the subcontractors employees to present the same documents due to the passage of time between the original completion of the I-9 and the request by the general contractor;

(b) such practice might result in subcontractors employees perceiving they have been discriminated against due to their citizenship or immigration status, if they are ultimately barred from employment; and

(c) the subcontractors employees might  allege discriminatory I-9 practices in violation of the anti-discrimination provision of the Immigration and Nationality Act.

The OSCs letter touches on a  topic important to clients who have contract workers on their properties and premises.  The general question asked is, What can I do to make sure that contract workers are authorized to work, since I can be held responsible if they aren’t?  Here are a few things to consider:

  • As the owner and not the employer, you are only at risk if you know or have constructive knowledge that a contractors employee is unauthorized to work in the U.S.
  • Solid contractual provisions  between you and the contractor that also flow down to any subcontractors are key. Make sure they address immigration law compliance, the I-9 verification process,  E-verify  (if applicable), as well as indemnification for non-compliance.
  • The applicable regulations state that the I-9 form is to be used only for enforcement of the immigration laws, so  requests to audit I-9 forms, obtain copies of I-9 forms, or to obtain copies of documents presented to complete I-9 forms should be discussed with legal counsel.
  • As the owner, your legitimate interest is access to property and not employment, so you want to separate the two concepts with any requests or obligations you place on your contractors.  For example, you may require individuals working on your property to present appropriate identification prior to having access to your premises. This is separate and distinct from any I-9 form process that occurs between your contractor and its employees.
  • Requiring your contractors to go through an immigration compliance audit by a third party you select may be the route to go, especially if you are allowing access to safety-sensitive, valuable, highly regulated or critical infrastructure property.

The bottom line is that there are right and wrong ways to ensure  immigration compliance by your contractors and to reduce risk that you will be responsible for any non-compliance on their part.

News from USCIS and E-Verify We Plan to Contact Your Employees!

If you wondered why USCIS chose to include “optional” fields for phone numbers and email addresses of employees in the recently updated Form I-9, you do not have to  guess any more.

 USCIS plans to contact your employees.  Yes, you heard it right. USCIS plans to contact employees (who provide their email address on their I-9 forms) if their respective E-Verify case results in a TNC (Tentative Non Confirmation).  Presently, there is no plan for telephone communication, but that can change. As well, USCIS recently stated that it presently does not plan to copy employers on such e-mail notifications.

 During the last USCIS Stakeholder Conference, USCIS informed the public that it will contact employees in the following three cases:

 Initial Alert:  Employees who provided an e-mail address when completing Section 1 of Form I-9 will receive a notification informing them of a TNC.

  • Reminder:  Employees will receive a reminder that they have 8 federal working days to begin the process of resolving the TNC if they choose to contest it.  It is our understanding that if the employee notifies the E-Verify system that it will contest the TNC but fails to contact the agencies to initiate the resolution process within 4 days of making such election, the system will prompt an e-mail reminder.
  • Post Determination Notification:  Upon final verification, even when the results of the case confirm that the employee is authorized to work in the United States, the system will remind the employee to contact SSA or DHS, or avail itself of Self-Check in order to prevent future TNCs if he/she were to change employment.

In addition, the Initial Alert will contain a section on “Reporting Violations” that informs employees how and where to report employers for violations of E-Verify rules and discrimination or “unfair” treatment.

 So, what can employers do?

 Our clients have asked if it is permissible for an employer to direct the employee not to provide an e-mail address when completing form I-9. The answer is no. While the email and phone number fields in Section 1 of the Form I-9 are entirely optional to compete, the option still belongs to the employee. Therefore, employers may not direct employees not to provide such information.   Arguably, it may be permissible to tell employees that providing an e-mail address is optional by referring them to the applicable instruction (Note that the I-9 form itself does NOT mention that the e-mail address or phone number is “optional”).  The employer also may be able to inform employees that whatever e-mail address and phone numbers are provided must be provided to the government.

In addition to not being able to tell employees NOT to provide an e-mail address, an employer cannot force an employee to provide an e-mail address.  If the employer is not familiar with the I-9 instructions, it could easily ask an employee to complete the e-mail and phone number fields on the I-9 in the interest of making sure the I-9 is fully completed.

 USCIS also advised that an employer may not fail to provide the employee’s e-mail address if the employee opted to provide it in the I-9.  In other words, if the employee chooses to provide it on the I-9, the employer must provide it during the E-Verify process.

 The employee may also  choose what email address they will provide, including a company e-mail address. While employers may have a policy that prohibits the use of company email for personal purposes, communication related to a TNC arguably is a legitimate business purpose, thereby allowing employees to provide such if they so choose.

 Finally, if your company is currently utilizing an electronic I-9 system to complete the forms and submit the cases to E-Verify, you should ensure that your vendor has updated the form and is currently aware of this issue.