Examining documentation for the Form I-9

Actual knowledge vs. constructive knowledge

When examining documentation, employers must keep in mind that it is unlawful to hire an individual or continue to employ him or her if the employer "knows" that the individual is or has become unauthorized to work. Employers might have actual knowledge of an employee being unauthorized (where the employee couldn't provide proper documentation, for example), or might have constructive knowledge. Constructive knowledge is that which may be fairly inferred through notice of certain facts and circumstances which would lead an employer (through the exercise of reasonable care) to know about a certain situation.

For instance, an employer received information that some employees were suspected of having presented false documentation to show work authorization for the Form I-9. If the employer fails to make any inquiries or take appropriate corrective action (such as examining the employees' Forms I-9), then the employer would be considered to have had constructive knowledge of the employees' unauthorized status.

An employer that fails to complete or improperly completes the Form I-9 for a particular employee might also be considered to have constructive knowledge of wrongdoing. In New El Rey Sausage Co. v. INS, the Ninth Circuit Court cited a previous opinion, which stated that an employer's "deliberate failure to investigate suspicious circumstances imputes knowledge."

Discovering false documentation

False documentation includes documents that are counterfeit or those that belong to someone other than the employee who presented them. While employers are not expected to be document experts, there are some clues they can look for to ensure that an employee's documents are valid. For example, on most modern documents, photos are computer generated right onto the card.

Employers should look for detail in logos and in the edges and borders of the card. In genuine documents, these will be clear and distinct, while on fake documents, these lines and borders are often blurred. Some modern documents have holograms on the front or back, which become visible when the card is tilted.

When names don't match

Ideally, the name on an employee's document(s) will match the legal name that he or she listed in Section 1 of the Form I-9. However, it sometimes happens that either the names on the documents (if one List B and one List C document are presented) don't match one another, or the names on either or both documents don't match the name that the employee wrote in Section 1 of the Form I-9.

Where this is the case, remember that there may be slight variations in the names people use on their documentation. For instance, "Michael" might be shortened to "Mike," or an individual might use a hyphenated last name in one place and a single last name in another. These types of differences aren't typically problematic on the Form I-9 if the differences don't cause the employer to question:

• Whether the documentation is valid/genuine, or
• Whether the documentation belongs to the person presenting it.

If the name variations are so great that the employer cannot be certain that the documentation is valid and belongs to the person presenting it, the employer should not accept the documentation and should ask the individual for alternate documentation.

After the fact: Accepting false documentation

Despite some employers' best efforts to accept only genuine documents, it does happen that an employer inadvertently accepts a document that is not genuine - or is genuine but does not belong to the person who presented it. The employer will not be held responsible if the document reasonably appeared to be genuine or to relate to the person presenting it. However, if an employer discovers that it inadvertently accepted illegitimate documentation, the employer should question the employee regarding the information provided.

If the employer concludes that the documentation is not legitimate, the employer should ask the employee to provide proper I-9 documentation. If the employee can provide it, the employer should update the Form I-9 either by completing a new form and attaching it to the original or by updating the original form (if it is still valid for use).

Note that employers are not required to fire employees who provide false documentation but are able to correct the problem, although employers may choose to do so if their company policy allows termination for providing false documents or information.

On the other hand, if the employee cannot provide valid documentation after the employer learns that the employee's original documentation is not legitimate, the employer may no longer continue to employ the individual.

Employers often ask, "How long can I give the employee to provide documentation before firing the person?" The law simply says that employers may not continue to employ someone who is not authorized to work in the U.S. There isn't a "grace period" for allowing someone to provide documentation. Of course, if the employee is able to provide proper documents at a later date, the employer may always rehire that person.