What should an employer do?  The employee provides facially valid documents and completes Section 1 of the I-9 .  Time goes by… one fine day, the employee presents the employer with new documents, perhaps in a different name.  The employee discloses that the first set of documents were not valid, they were fakes, good fakes, but says that the new documents are real and legitimate.

This happens with some frequency and as Deferred Action becomes more prevalent, it will likely occur even more.  Recently,  the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a Technical Assistance Letter (TAL) that sheds some light on this question (January 8, 2015 letter from Alberto Ruisanchez, Deputy Special Counsel).

The USCIS M-274 I-9 Handbook gives the following guidance: “ …an employee may have been working under a false identity, has subsequently obtained a work authorized immigration status in his or her true identity, and wishes to regularize his or her employment records.  In that circumstance 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….the I-9 rules do not require termination of employment.”

The OSC could not identify any violation of the anti-discrimination law 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…when an employer allows an employee to continue employment under (these) circumstances.”

So long as the employer does not reject valid work authorization documentation or terminate employees because of their citizenship, the employer is not likely to be violating the federal anti-discrimination laws.

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Robert S. Whitehill is Chair of the Immigration Practice Group at Fox Rothschild LLP.  He may be reached at rwhitehill@foxrothschild.com.