Maintaining copies of supporting documents used during the employment eligibility verification process can show good faith during an investigative audit, reduce fines and serve as a defense against discrimination claims. But haphazardly copying documents could land companies in hot water.
Employers are not required to create or attach photocopies of documentation submitted to satisfy Form I-9 requirements during the employment eligibility verification process, but the practice is permissible.
However, “if an employer has a policy to photocopy documents, the employer must do so for all employees to avoid potential claims of discrimination,” said John Fay, vice president and general counsel at LawLogix, a Phoenix-based software company specializing in cloud-based immigration and compliance services.
Verifying Form I-9 Documents
As part of the Form I-9 process, new hires present original identity and work authorization documents to their employers to prove that they are authorized to work in the U.S. New employees can present either one document showing both identity and employment authorization or one document showing identity and another proving work authorization. Employers must physically examine the documents to determine if they reasonably appear to be genuine and relate to the employee presenting them before recording the document information, signing the form and returning the documents to the worker.
Reasons to Make Copies
There are numerous advantages to copying I-9 supporting documents, Fay said. Maintaining supporting documents may help show good faith during an audit by Immigration and Customs Enforcement (ICE) investigators.
“For example, if an employer is accused of knowingly hiring an unauthorized worker, a copy of the document presented may show that the employer had good reason to believe the person was authorized to work in the U.S.,” Fay said.
In addition, retaining copies of I-9 documents could reduce civil monetary fines for common I-9 paperwork errors. “While making copies is not an affirmative defense against liability, [it has been] accepted … as a mitigating factor in the imposition of financial penalties,” Fay said.
Keeping copies of all new hires’ documentation can make conducting internal I-9 audits easier. Backup documentation can also come in handy as a defense against discrimination claims, Fay said.
In some instances, employers have to copy I-9 documents in order to comply with E-Verify requirements (See Rules for E-Verify Differ, below) or certain state laws, such as those in Colorado, Louisiana and Tennessee. “Consistently copying I-9 documents of all employees can help ensure compliance with these frequently changing laws and reduce the possibility of disparate treatment,” Fay said.
Reasons Not to Make Copies
Employers should use caution before deciding to maintain copies of employees’ Form I-9 supporting documents. In particular, Fay reminded employers that making and keeping copies of identity and work authorization documents “may inadvertently provide ICE with irrefutable evidence that the employer knowingly accepted false documents. This is especially true if the copies show that the ID did not reasonably relate to the employee.”
If employers decide to keep even one copied document, they must make and keep copies of all workers’ documents. “Copies cannot be made on a selective basis. Selective document reproduction raises troubling and potentially actionable allegations of discriminatory conduct,” Fay said.
He also noted that employers shouldn’t think that copying documents alone is a substitute for completing the Form I-9.
Lastly, copying documents may raise privacy concerns, especially if the copies are not securely stored. “Unauthorized access to sensitive documents may lead to identity theft and credit-monitoring obligations,” he said.
Rules for E-Verify Differ
Fay explained that if employers are enrolled in E-Verify to authenticate workers’ employment eligibility and an employee presents a document that requires photo matching, the organization must retain a photocopy of the document presented. These documents currently include a U.S. passport and passport card, permanent resident card (Form I-551), and employment authorization document (Form I-766). Other documents may be added to the photo-matching feature in the future.
Roy Maurer is an online editor/manager for SHRM.
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