The U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA). This law prohibits, among other things, document abuse during the Form I-9 employment eligibility verification process.

Employers as a best practice should conduct regular self-audits of their I-9s to ensure the forms are completed properly. What is the appropriate response if an employer, during a self-audit, discovers that it has accepted more documentation than is necessary for Form I-9 purposes? The OSC, via a technical assistance letter, recently provided guidance on this point.

OSC stated that 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 Form 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 (i.e., engages in I-9 over-documentation), OSC stated that 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.

An employer that has accepted more documentation than is necessary for Form I-9 purposes for reasons other than an employee’s citizenship or immigration status or because of an employee’s national origin – such as due to a mistaken belief that the new hire must provide a document from List A, List B, and List C of the Form I-9 – would not be liable under the anti-discrimination provision of the INA. However, that does not mean that the employer who has engaged in such over-documentation is free from potential exposure. An employee subject to over-documentation may believe the reason for the over-documentation was his/her citizenship, immigration status or national origin and refer the case on to investigation by OSC. The employer will bear costs in responding to such an investigation, regardless of their merits.

In addition, OSC is not the only agency with enforcement powers relevant to the Form I-9. Immigration and Customs Enforcement (ICE) is responsible for ensuring that employers maintain for inspection original Forms I-9 for all current employees and of former employees for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer. ICE penalties for I-9 violations range from $110 to $1100 per I-9 for substantive violations and penalties for knowingly hiring and continuing to employ unauthorized workers range from $375 to $16,000 per violation. Employers that engage in over-documentation tend to also have more significant Form I-9 compliance issues that would result in fines during an ICE audit. Therefore, over-documentation, even if it does not rise to the level of discrimination punishable by OSC, should be seen by as employer as a symptom of a larger, more serious issue with the employer’s Form I-9 compliance program and serve as an impetus to perform thorough review of current practices and implement additional training where necessary.