What’s an employer to do if you think a new hire is possibly showing you a fraudulent document for purposes of the Employment Eligibility Verification form (Form I-9)? That’s a tough one because the only guidance employers are provided is that they can only “reject a document presented by an employee if the document does not reasonably appear to be genuine or relate to the person presenting it”. The latter part of the equation is easy, it’s the former that’s tough — the reasonable person standard. On its website, US Citizenship and Immigration Services (USCIS) states the following:
“Employers are not required to be document experts. They must accept documents that reasonably appear to be genuine and to relate to the person presenting them. However, if a new employee provides a document that does not reasonably appear to be genuine, the employer must reject that document and ask for other documents that satisfy the requirements of Form I-9. The standard used for determining whether a document is genuine is whether a reasonable person would know that the document is fraudulent.”
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a technical assistance letter in November which confirms the above statement on USCIS’ website. So nothing new there. However, one interesting point is that it opines on a company’s “honesty/dishonesty policy” and states that “consistent application of a dishonesty policy would not constitute a per se violation of the anti-discrimination provision.” The example OSC cites — which is not an unusual circumstance — is where an employer rejects someone who is presently work-authorized but was previously not work-authorized and presented fraudulent documents during the hiring process. Assuming your company has an (dis)honesty policy and you apply it consistently, this recent OSC letter may be helpful in those situations.
But returning to the issue of when a document is valid, or not, for purposes of the Form I-9. Unfortunately that can be highly subjective. My advice is don’t over-think it but also don’t pretend to be a forensics expert thinking you’re on NCIS or a similar made for TV crime show. Unfortunately identity theft is a problem and some knockoffs are of extremely high quality. Now, if you receive a document that looks like a 1st grader slapped it together in art class then perhaps you should give it more thought. Finally, if you don’t want to run afoul of the anti-discrimination provision of the immigration law don’t be hyper vigilant about new hires with a foreign name or foreign appearance and barely pay attention when John Smith presents his documents.