BUT THAT’S NOT HIM

Steven Cesare, Ph.D.

A detail-oriented business owner from Massachusetts called me the other day to discuss an issue I respond to on a regular basis: same employee, different day, new I-9 documents. While there are innumerable bureaucratic nuances, regulations, and technicalities embedded within the human resources system that inarguably test business owners’ patience, this one fundamentally challenges their essence, integrity, and faith in the system. Let’s get to the story, that you or someone you know, likely have experienced.

The Massachusetts owner has been blessed with a cadre of steady employees over the years: consistent, hard-working, and trustworthy. Then unexpectedly on the morning, right before he called me, one of his truthful field employees came to him with the statement that the employee had “new” I-9 documents.

“New.”

Not revised.

“New.”

These new documents did not simply reflect standard changes normally documented in Section 3 of the I-9 Form based on extended expiration dates on: a Foreign Passport containing the temporary I-551 stamp (i.e., List A, Document 3), the Employment Authorization Document containing a photograph representing Form I-766 (i.e., List A, Document 4), or the Employment Authorization Document issued by the Department of Homeland Security (i.e., List C, Document 7). Stated directly: The employee’s name on the new documents did not reflect the identity of the employee, that the Massachusetts business owner had heretofore known him to be for their entire working relationship.

No. This was not a case of gender reassignment, a well-conceived Deep Fake AI scenario, or voluntary participation in the Witness Protection Program. The employee informed the owner that these new documents accurately reflect the employee’s true self, replacing the previous set of documents that were supposedly accurate yet were used illegally by the employee to secure work authorization in the USA, which unbeknownst to the unsuspecting business owner, put the business owner in legal risk. In less politically correct times, that was called fraud; just in case you were wondering.

In unison with the earnest Massachusetts business owner, all together now: “Steve, what do I do now?”

Short answer: Suspend your intellect, shake your head, and follow the law to avoid a discrimination claim.

Per the USCIS: “6.3 Recording Changes of Name and Other Identity Information for Current Employees”: 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 I-9 Form. 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 I-9 Form. Write the original hire date in Section 2 and attach the new I-9 Form to the previously completed I-9 Form and include a written explanation.

In cases where an employee has worked for you using a false identity but demonstrates current authorization to work in the United States, I-9 Form rules do not require termination of employment.

There are other laws, contractual obligations, or company policies to consider before taking action (i.e., the Immigration Nationality Act prohibits discrimination based on citizenship, immigration status, and national origin). Section 11.0, Unlawful Discrimination & Penalties for Prohibited Practices presents the particulars.

And oh, by the way, if it happens again with the same employee, repeat the same process.

You can stop shaking your head now.

If that’s really YOU.

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