By John Fay
Form I-9 requirements can be exceedingly complex for HR representatives, hiring managers, and others involved in the verification process. These individuals often bear the responsibility of overseeing the diverse number of documents that can be presented by newly hired employees and ultimately deciding whether they are acceptable under the law. To make matters even more complicated, the documents themselves are often changing.
For example, the United States Citizenship and Immigration Services (USCIS) redesigned their lawful permanent resident cards, also known as green cards, as well as their employment authorization documents (EADs) on Jan. 30, 2023. Changes included new detailed artwork,more secure holographic images on the front and back of the cards, and data fields displayed in different places than on previous versions.
Source: https://www.uscis.gov/newsroom/news-releases/uscis-redesigns-green-card-and-employment-authorization-document
USCIS implemented these design changes to further enhance the security and integrity of the documents and help prevent document fraud. Despite the launch of newly designed cards, certain older green card versions will remain valid until their expiration date. This means that employers, or authorized representatives should be aware of both the old and new designs when completing I-9s.
While commonly used, a green card is just one possible document that a new hire may present. As part of completing the Form I-9 process, the employer or an authorized representative must examine an employee's documentation, from the Lists of Acceptable Documents, which demonstrates both their identity and eligibility to work in the US.
Completing this examination, however, can be easier said than done. On the one hand, employers are required to review and accept documents that reasonably appear to be genuine and relate to the employee presenting them. USCIS has also stated that employers do not have to be document experts when examining I-9 documentation. But on the other hand, Immigration and Customs Enforcement (ICE) has noted that many worksite enforcement investigations are initiated due to reports of document fraud, as well as other related violations including misuse of visas.
Document fraud is a serious issue that employers may encounter when conducting employment eligibility verification. In a 2005 report to Congress, the US Government Accountability Office (GAO) noted that document and identity fraud have hindered employers’ efforts to reliably verify employees’ work eligibility. The GAO cited various studies that showed document fraud (use of counterfeit documents) and identity fraud (fraudulent use of valid documents or information belonging to others) have ultimately made it difficult for employers who want to comply with the law.
While some counterfeiters produce documents with lower quality that may be easier to identify as inauthentic, some fake documents may require closer examination to identify them as fraudulent. Fabricating documents and IDs has become easier in recent years thanks to more sophisticated forgery methods. Advanced document printers can create convincing fake IDs. Synthetic identity fraud, which involves combining identifying information from a real person with fake documents, is also a current threat. To better identify and reject fraudulent documents, ICE has indicated that an employer can look for things like document flaws or evidence of tampering or even changes to the document holograms.
Source: https://www.e-verify.gov/fraudulent-documents-awareness
(An authentic design of a green card is on the left and a counterfeit card on the right.)
In comparing the two documents above, the document reviewer would need a sharp eye to notice the flaws in its design. The authentic card on the left has an optically variable design of the Statue of Liberty over the bearer’s image that changes its appearance from different angles, visible when the card is tilted. The fraudulent card on the right shows a faint outline of the Statue of Liberty near the bearer’s image that remains static and does not change its appearance at different angles.
Identifying document fraud, or discovering inconsistencies in document security features like embossed printing or laser engraving that may be better verified by touch, could prove to be more challenging when examining Form I-9 documents through the so-called “Optional Alternative Procedure to Physical Document Examination” which was introduced last year.
To help address this challenge, USCIS has said that employers will need to complete fraudulent document awareness training, to be provided by the Department of Homeland Security (DHS) in their E-Verify tutorials and on their public-facing website. DHS intends to monitor and evaluate this new virtual procedure through ICE I-9 audits to look for errors or fraud.
As a reminder, the virtual review option is only available to E-Verify participants, in good standing, who perform the following steps as part of the virtual examination process:
Examine copies (front and back, if the document is two-sided) of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine and relates to the employee;
Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and relates to the individual. The employee must first transmit a copy of the document(s) to the employer (per Step 1 above) and then present the same document(s) during the live video interaction; and
Retain a clear and legible copy of the documentation (front and back if the documentation is two-sided).
If an employer chooses to reject a document that does not reasonably appear to be genuine or to relate to the person as described above, the employer must provide the worker an opportunity to produce a different valid document. Failure to do so may be considered an unfair documentary practice, a violation that is prosecuted and enforced by the the Department of Justice, through its Immigrant and Employee Rights (IER) unit. IER also cautions employers that rejecting a valid document based on a worker’s citizenship status or national origin may violate the law that IER enforces.
USCIS guidance indicates that employers may designate, hire, or contract with an authorized representative who will complete, update or make corrections to Section 2 or Supplement B, Reverification and Rehire, on their behalf. While employers have the freedom to use an authorized representative of their choosing for both the virtual and in-person document review options, employers are ultimately on the hook for any errors or omissions made by that individual.
Document examination and review, in particular, can be challenging for an untrained or inexperienced reviewer, who may not be familiar with all of the document types and some of the unique rules which are in effect for non-citizen employees. An untrained or unprepared representative can also result in a less positive onboarding experience for a new hire, particularly when follow-up appointments are needed to correct mistakes.
I-9 document errors can present significant potential liability, which generally increases based on the number of mistakes and other factors such as the seriousness of the violations and the organization’s compliance history. Employers may also face criminal charges where there is a reasonable cause to believe that the employer is engaging in a pattern or practice of knowingly hiring unauthorized workers.
It is important to be aware of these risks and remember that any size business can be audited and required to produce their I-9s with just 3 business days’ notice.
As the above illustrates, completing Form I-9 isn’t for the faint of heart. As Form I-9 and E-Verify rules continue to evolve at a rapid pace, you may recognize that you are being held to a much higher standard than before. You have to keep track of changing regulations and guidance, decide which verification option you’re going to use, and implement a consistent process that can withstand a potential government audit. The I-9 document review process can be complex and so it's very important for employers that complete I-9s “in-house” (using their own staff) to conduct thorough and ongoing training on some of these nuances and complex rules.
To help reduce their potential risk even more, many employers are now utilizing electronic Form I-9 systems and outsourcing their Section 2 completions to trained completers. Participating employers can invite their newly hired employees to login into the electronic Form I-9 system, complete section 1 at their home, and then schedule an appointment with a nearby agent who’s trained in Form I-9 completion and document review, or virtually if eligible and the platform has this option available. After the Form I-9 has been completed, employers have immediate access to review the form and supporting documents, if applicable.
If you are looking for assistance with managing your I-9s, take a look at our I-9 HQ suite of services. To learn more about the past, present, potential future of Form I-9, watch our on-demand webinar, What’s In Store for 2024? Your Latest I-9 Questions Answered.
The information provided is intended as general guidance and is not intended to convey any tax, benefits, or legal advice. For information pertaining to your company and its specific facts and needs, please consult your own tax advisor or legal counsel. Equifax Workforce Solutions provides services that can help employers reduce their compliance risks. Details on our provision of these services and related support will be contained in your services agreement. Links to sources may be to third party sites. We have no control over and assume no responsibility for the content, privacy policies or practices of any third party sites or services.