United States: Dear Littler: Does An Employer Have To Report Discrepancies Identified In Old I-9 Forms?

Last Updated: February 27 2017
Article by Jorge R. Lopez

Dear Littler: A former employee recently reapplied for an open position at our company. In reviewing the new-hire paperwork, we noticed that her social security number did not match the one we had on file previously. Her new information checks out fine, but we are wondering if we have any reporting or disclosure requirements, to the extent that perhaps her information in her old I-9 was inaccurate?

–Harried HR Manager in Texas

Dear Harried HR Manager,

As you know, all employees (including rehires) are required to complete Form I-9, no later than their first day of employment, to demonstrate their identity and eligibility to work in the United States. Your scenario raises the question of how to handle the possibility that your applicant for rehire made an error—intentional or otherwise—in her original paperwork. Given the new administration's ongoing focus on immigration issues, you are smart to consider your duties in this situation proactively. In fact, now might be a good time to revisit your company's employment eligibility verification procedures generally and remedy any glitches in systems or paperwork.

For today, however, the short answer to your question is "no." As long as your applicant's paperwork is complete, and her current documentation appears genuine in your opinion, you are not obligated to report any prior discrepancy. For a bit of explanation, let's briefly review an employer's I-9 duties, particularly in the case of a rehire.1

Employers must have new hires fill out an I-9 when they start work. Within three business days of their start date (not including the day they start work), new employees are obligated to provide original, unexpired documentation to support their I-9 responses. Employees may choose what type of documentation to provide from lists of the acceptable options, and the employer cannot demand either particular or additional documents if the document meets the I-9 requirement. Thus, for example, if a new hire presents a valid driver's license and a certified birth certificate, an employer cannot also ask the employee for a social security card.

When presented with the I-9 and documentation, the employer must examine the materials in the presence of the new employee. This step gives the employer the opportunity to confirm that the documentation appears to be legitimate and to relate to the new employee. If the materials appear reasonably genuine on their face, and relate to the individual, the employer must accept them. If an employee fails to deliver satisfactory documentation within three days, the employer may discharge the individual.

That being said, an employer is not expected to be a document expert. If the picture on a driver's license does not resemble the individual who presented it, an employer may reject the documentation and ask for another acceptable document. By way of another example, if the name on a document does not match the name given on the I-9, an employer can still accept the materials if there is a reasonable and supported explanation for the discrepancy, preferably with corroborating information. As long as an employer reviews the materials, reasonably believes they are genuine, and concludes that they relate to the employee, it can rely on that documentation.

Similar principles apply in the context of a rehire. If the rehire occurs within three years of the execution date of the worker's original I-9, an employer could use that same form and complete Section 3, which concerns re-verifications and rehires.2 In the situation you describe, however, the change in social security number necessitates completion of a new form, along with retention of the original form.3 Again, when completing the new I-9, if the employer reasonably finds that the supporting documentation appears authentic and relates to the rehire applicant, it must accept those materials.

Of course, some employers in your situation may suspect that the rehire candidate worked under a false identity in the past. According to USCIS guidance, if the employee is currently authorized to work, an employer is not obligated to terminate the employment or to report its concerns about the employee's prior conduct. An employer should consider any pertinent company policies, state laws, or other factors—but the discrepancy in social security numbers on the individual's two forms neither prevents an employer from rehiring the employee, nor triggers any disclosure requirement.4

Employers in such a situation must also bear in mind that the law prohibits discrimination on the basis of an employee's actual or perceived citizenship, immigration status, or national origin.5 Simply put, as long as an individual is authorized to work in the United States, employers cannot discriminate against them because they look or sound "foreign." Types of unlawful discrimination include, for example: demanding that employees provide additional documentation where not required, rejecting valid documents that should be accepted, and refusing to hire work-eligible U.S. citizens, asylees, or refugees. Retaliation is also illegal, and larger employers may be subject to Title VII and other anti-discrimination laws. On the whole, employers must balance their duties to avoid knowingly employing unauthorized aliens and to avoid unfair immigration-related employment practices.

Private employers that participate in the E-Verify program are bound by nearly identical rules.6 E-Verify is an electronic program employers may use to submit new-hire information to the Department of Homeland Security (DHS) and the Social Security Administration (SSA). The program attempts to match each employee's information, taken from an I-9, with data held by the DHS and the SSA to confirm the employee's identity and work eligibility. While E-Verify is currently voluntary under federal law, many employers must participate under state law. To date, approximately 15 states require public contractors or employers to participate in E-Verify, and about eight states apply this requirement to private employers. Moreover, Congress is currently considering a bill that would mandate E-Verify for employers nationwide.

In any event, Harried HR Manager, you may proceed to rehire this former employee, if you wish. Because you have verified her identity and her current eligibility to work, you have complied with your federal obligations as a private employer.


1. Additional details are available from the U.S. Citizenship and Immigration Services (USCIS) website, including: (1) a copy of the current Form I-9 (https://www.uscis.gov/system/files_force/files/form/i-9.pdf?download=1); (2) instructions for completing Form I-9 (https://www.uscis.gov/i-9); and (3) a Handbook for Employers (https://www.uscis.gov/sites/default/files/files/form/m-274.pdf). USCIS also has posted frequently asked questions, which can be found at https://www.uscis.gov/i-9-central/questions-and-answers.

2. If the employee has been gone more than three years from the date of the original I-9, a new form must be completed.

3. Specifically, an employer should complete Section 3 of the original form and retain it along with the new, updated I-9.

4. The same approach generally applies if an existing employee has a legal name change or otherwise wishes to straighten out his or her employment records. See, e.g., USCIS, Handbook for Employers: Guidance for Completing I-9, at 23–24 (M-274, Rev. 4/30/13), available at https://www.uscis.gov/sites/default/files/files/form/m-274.pdf. Employers may then re-verify the employee's eligibility with the updated, accurate information.

5. These anti-discrimination provisions, found in the Immigration and Nationality Act, apply to employers with four or more employees. See, e.g., USCIS, Handbook for Employers: Guidance for Completing I-9, at 31–35.

6. Employers that participate in the E-Verify program must obtain the employee's social security number, which otherwise is voluntary. E-Verify employers also must make copies of certain types of documents that may be submitted by employees (i.e., passports). Employers not enrolled in E-Verify are not required to make copies of any I-9 supporting documentation. Employers that choose to make copies must still complete Form I-9 and may not use the copies for any other purpose.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Jorge R. Lopez
Similar Articles
Relevancy Powered by MondaqAI
Reinhart Boerner Van Deuren s.c.
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Reinhart Boerner Van Deuren s.c.
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions