What happens when during an internal I-9 Audit, a company discovers it has accepted more documentation than necessary for Form I-9. Should the company retain or destroy the documentation?
This question was recently posed to the U.S. Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Immigration Practices (“OSC”). OSC responded by confirming that “we are not aware of any publicly available guidance issued by any agency recommending steps an employer should take if it accepted too many documents during the Form I-9 process.” However, OSC confirms that a violation 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.”
Therefore, in the case of an over-zealous employee, there likely is no violation. However, if the documentation occurs (as is sometimes the case) with permanent residents, where all the Forms I-9 for permanent residents include a permanent resident card, driver’s license, and social security card, it may appear that requests for additional documents were made because of an employee’s immigration status. OSC side-stepped any statement on whether an employer should retain or destroy the documentation.
If this issue is discovered during an internal review of Forms I-9, companies should seek the assistance of legal counsel to assess the potential exposure and risk of a charge of discriminatory Form I-9 practices.