By: Dave Fowler
As E-Verify users know, the Photo Matching feature requires employers to make and retain copies of employee documents subject to Photo Matching. For many E-Verify employers work locations are not equipped with copiers, scanners, and or fax machines to allow them to make copies of employee documents subject to E-Verify Photo Matching. Purchasing, installing, training, supporting, and maintaining such equipment is a significant burden on these employers, especially when the employer has hundreds of locations. This unexpected expense for a large E-Verify employer can run into hundreds of thousands of dollars.
At an August 2010 ICE training conference held in D.C. one of the topics of several side discussions was having the employee provide copies of their Section 2 documents subject to E-Verify Photo Matching. The employee would need to provide two copies of a Photo Matching document; one to be retained by the employer and one to potentially be sent to DHS for verification in the event of a DHS Tentative Non-confirmation resulting from a photo mismatch. ICE indicated that they were comfortable with this approach provided the employer inspected the employee’s original documentation and confirmed that the copies were of the same documentation.
The only open question was approval of the practice by USCIS. The proposal was sent to E-Verify after the training session and on October 8, 2010 E-Verify provided the following response.
The following information has been provided by our Policy Team.
The E-Verify MOU requires employers to photocopy certain types of original documents an employee presents for Section 2 of Form I-9. While an employer may request that an employee provide a photocopy of his or her document(s), an employer may not require the employee to do so, especially if the employee refuses. Employers may need to allow additional time for employees who do not have access to a copier to provide copies, and should not penalize employees who refuse or are unable to provide copies of Form I-9 documentation.
The employer may not delay or deny employment, fire, or take any other adverse action against the employee for failing to provide a photocopy of an original document.
If the employer requests that any newly hired employee provide a photocopy of an original document, the employer must request that every new employee provide photocopies of original documents, regardless of citizenship status or national origin. The employer is still required to view the original document and complete Section 2 of the Form I-9 after viewing the original document.
When completing Section 2 of Form I-9, the employer may not require that the employee provide specific document(s) or may not reject documents that are otherwise acceptable for I-9 purposes, based on an employee’s citizenship status or national origin.
If the employee is unable or refuses to provide a photocopy of the original document he or she presented for Form I-9, the employer is required to make a photocopy of the original document.
We hope this information has been helpful to you. If you need help with any other E-Verify issues, please do not hesitate to contact E-Verify at 888.464.4218 or email us at E-Verify@dhs.gov. You may speak to a representative Monday – Friday from 8:00 am to 5:00 pm Local Time.
Thank you for allowing us to serve you!
The E-Verify Team
This information is not currently published on the USCIS or E-Verify web sites. Today, E-Verify approved release of this information.