Imagine this scenario: A few years ago, an employer hired an employee, and completing the Form I-9 was routine as part of the onboarding process. Fast forward to today, when the employee approaches human resources and confesses that their initial I-9 documentation was false. The employee now presents new employment authorization documentation.
What should the employer do? This scenario is more common than one might expect, and fortunately, there is guidance for employers to effectively address it.
Federal law prohibits employers from knowingly hiring, employing, or contracting with any person who is not authorized to work in the United States. Accordingly, employers must verify new employees’ identities and work authorizations, which is done by completing the Form I-9. The U.S. Citizenship and Immigration Services (USCIS) makes the form freely available and periodically updates it, as it did most recently in 2023. Less well known is the USCIS’s Handbook for Employers: Instructions for Completing the Form I-9, also known as the Handbook for Employers M-274.
The handbook is designed to guide employers through the process of properly completing the Form I-9 and verifying their employees are authorized to work in the United States. Section 6.3 of the handbook specifically addresses situations where an employee initially provides false documentation, then later admits to the falsehood and submits new documentation:
“You may encounter situations other than a legal name change where an employee informs you (or you have reason to believe) that their identity is different from what they used to complete their Form I-9. For example, an employee may have been working under a false identity, has subsequently obtained work authorization in their true identity, and wishes to regularize their employment records. In that case, you should complete a new Form I-9. Write the original hire date in Section 2 and attach the new Form I-9 to the previously completed Form I-9 and include a written explanation.”
Accordingly, the employer’s course of action should involve completing a new Form I-9 with the updated documentation, attaching it to the initial Form I-9, and documenting the situation for recordkeeping purposes.
Although, as the guidance notes, the Form I-9 rules do not require termination under these circumstances, employers may still wonder whether it is allowed. After all, the employee created significant liability risk for the employer by presenting the initial false documentation.
Federal law prohibits discrimination based on citizenship, immigration status, and national origin. In light of these anti-discrimination provisions, employers must be mindful if considering termination. As the U.S. Department of Justice (DOJ) explained in a January 2015 opinion letter, the DOJ “cannot identify any violation of [a federal statute] when an employer consistently accepts documents that employees choose to present that reasonably appear to be genuine and relate to the individual, regardless of whether an employee admits that the documents previously presented for employment eligibility verification were ‘not real.’ Nor can [the DOJ] identify any . . . violation [of the same federal statute] when an employer allows an employee to continue employment under the circumstances you present. However, to the extent an employer rejects valid work-authorization documentation or terminates employees because of their citizenship status or national origin, the employer could violate the anti-discrimination provision.”
To the extent that an employer takes adverse actions against employees in the Form I-9 scenario but does not do so for other forms of dishonesty (for example, dishonesty in prior work experience), there may be risk of discrimination liability. In the same opinion letter, however, the DOJ also noted that “an employer with a consistently-followed policy of terminating individuals for providing false information during the hiring process may have a legitimate non-discriminatory reason for the termination. Accordingly, whether or not [the DOJ] concludes that such a termination violates the anti-discrimination provision depends upon the facts presented.”
Under this guidance, termination decisions should carefully consider past termination actions and possible future implications. Employers should consult with counsel to weigh these risks before taking action under these circumstances.
Navigating the Form I-9 can present many scenarios that are complex and difficult to navigate. Employers Council has the resources to help employers with that process, such as whitepapers discussing the Form I-9 and E-Verify. If you have any questions regarding a specific situation, please reach out to our Member Experience Team.
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