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Form I-9: What should I do if employee’s documentation has discrepancies?

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in Employment Law,HR Management,Human Resources,Leaders & Managers,Management Training

What's an employer to do when the documents an employee presents to prove work eligibility don't match up? Employment law attorney Nancy Delogu guides you through the process of determining where employer responsibilities stop and employee responsibilities start. Subscribers to the HR Specialist Premium Plus service can tap Delogu's expertise weekly, through the web site's members-only "Ask the Attorney" service.

Q. We have a new employee that provided a state-issued ID and a Social Security card as forms of identification for his I-9 Form. The employee’s middle initial on the S.S. card does not match the middle name on the state ID. I have had no luck contacting any one at U.S. Citizenship and Immigration Services by phone and can not find an answer on the corresponding web site. Any help as to how to proceed would be greatly appreciated. — J.R., Michigan

A. Ensuring that new hires provide valid documentation to complete Form I-9, Employment Eligibility Verification is an ongoing compliance challenge for employers. An employer must not ask for information beyond what is required by the law, but does have a duty to follow up if the information provided raises a question about its validity.

Employers must complete a Form I-9 for all newly hired employees to verify identity and authorization to work in the United States. The employee completes Section 1 of the I-9, the employer representative completes Section 2, and Section 3 is utilized in the event re-verification of work-authorized status is required. Within three days of hire, the employee must present and the employer must review the employee’s choice of either one List A document, or a combination of one List B and one List C document. The employer cannot request that the employee present a specific document or combination of documents.

As you know, in order to complete Section 2, the employer must review the worker’s original verification documents. Photocopies or faxed copies are not acceptable substitutes. The employer must attest, under penalty of perjury, that it has examined original documentation presented by the employee, that such documentation “appears on its face to be genuine” and relates to the named individual and that to the best of the employer’s knowledge the employee is authorized to work in the United States.

In the circumstance you describe, you have some facial evidence that at least one of the documents presented is, at least, in error. Generally speaking, you should explain the problem to the employee and ask him to present you with another document (or documents) from the list that doesn’t have an error.

Documentation errors do occur, so a calm explanation of the problem to the employee, rather than any accusation of wrongdoing is advised.

Employers are not expected to be experts in detecting fraudulent documents; the decision as to whether a document appears to be genuine incorporates a standard of reasonableness. This standard provides a good-faith defense even if documents turn out to be fraudulent.

However, identity theft and the creation of fraudulent documents is on the rise, and civil penalties can be significant if the employer does not take care to investigate documents that appear to have defects such as the one you describe.

If the employee can provide another, facially valid document to satisfy the I-9 documentation, all is well. If not, you may have to tell the employee that you can’t continue to employ him without satisfactory proof of his authorization to work.

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