A recent settlement between Hilton Worldwide and the Department of Justice is a cautionary tale to employers to ensure that they exercise extreme caution when rejecting documentation provided by employees to satisfy the Form I-9.
On March 9, the Justice Department announced that Hilton Worldwide would be fined a total of over $13,000 in back pay and fines for refusing to accept an unrestricted social security card as evidence of work authorization when reverifying the work authorization of an asylee. For reverification purposes, an employee only needs to provide a valid document included in List A or in List C of the “List of Acceptable Documents” provided on page 9 of the current Form I-9. An unrestricted social security card is an acceptable List C document.
Along with fines, Hilton Worldwide must also update its personnel policies and manuals, retrain its staff responsible for Form I-9 Compliance and continue to provide any updates and changes to policy to the DOJ for review for the next two years.
Employers can easily fall into the trap of “over-thinking” the process in their desire to ensure compliance. Confusion often occurs as to whether, or which, special documentation is required from the employee to satisfy the Form I-9, when an employer knows the immigration status of the employee. When reviewing documents provided for the Form I-9, employers need to forget about immigration status and focus simply on the documents. When a List A or List C document previously provided to prove work authorization expires, the employee must provide the employer with valid and acceptable List A or List C document. The employer must review and record this document in Section 3 of the Form I-9 before the previous documentation expires.
It is not realistic to expect that employees who complete the Form I-9 on behalf of an employer will memorize every possible permutation of immigration status and acceptable documentation. Employers, therefore, should be certain to provide those employees, and anyone else serving as their agent for purposes of the Form I-9, with the Handbook for Employers M-274 as well as resources they can go to for questions. The Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has an employer hotline 1-800-255-8155 for such questions. Employers who may be concerned about taking their questions directly to the government organization that audits employers for such non-compliance, should contact their immigration attorney. Maggio + Kattar attorneys are always happy to answer compliance questions like “Can I accept this document for Form I-9 reverification purposes?” for our clients without charge.