[Editor’s Note: today’s post is brought to you by guest blogger Bruce Buchanan, an immigration attorney in the Nashville, TN office of Siskind Susser PC.]
As we finish applauding or booing (whichever you feel like) President Obama’s decision to grant deferred action to DREAMers, we need to think about potential I-9 compliance issues which may arise with so many individuals receiving work authorization documents or cards (EADs).
One potential issue is where a current employee receives an EAD but previously he provided fraudulent documentation, such as a fraudulent permanent resident card, EAD, or Social Security card, to you, the employer. That employee then presents a new and valid EAD to the HR manager and confides the prior documentation was fraudulent. What should an employer do in this situation? Much depends on your company’s policy on presenting fraudulent documents or lying on a company or government document.
There are several options. The first is to accept the new EAD, have a new I-9 form filled out and attach the old I-9 form to the new one with an explanation of the circumstances of completing the new I-9 form. If your company has a policy or practice of copying the underlying documentation, or is required to under state law, the new EAD should be copied. This option should only be utilized if your company does not have a policy or practice of automatic termination for presenting fraudulent documents or lying on a company or government document.
A second option is to inform the employee that your company has a policy prohibiting employment of employees who have presented fraudulent documents or lied on a company document. Thus, the employee is going to be terminated. However, if the company does not have a policy prohibiting their re-hire, the company may offer to re-hire the employee and fill out a new I-9 form with an explanation of the circumstances.
The third option is to inform the employee that your company has a policy prohibiting employment of employees who have presented fraudulent documents or lied on a company or government document and that employee is not eligible for rehire. Thus, the employee must be terminated without a chance of rehire. This action is particularly harsh but may be the only way for an employer to go if it wants to remain consistent with its policy.
The option that a company chooses will be dictated by your company’s policy and practice. Don’t have a policy concerning employment of employees who have presented fraudulent documents or lied on a company document? It may be time to start thinking about getting one. Consult with a qualified immigration compliance or employment attorney to develop an I-9 policy that addresses all the current legislation and best practices.
Always be consistent in your practices, especially when it comes to documentation. If you do a good deed by retaining a DREAMer after he has provided a valid EAD and admitted previously providing a fraudulent document, then, to be consistent, you may have to retain an employee who lied on his application about a felony conviction. Again, consistency is important.
Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.