I-9 document abuse: what counts as an unfair documentary practice, and how HR avoids a charge

I-9 document abuse is the everyday name for what the law calls an unfair documentary practice. It covers three things done during Form I-9 or E-Verify because of a worker's citizenship, immigration status or national origin: asking for more or different documents than the rules require, asking for a specific document, and rejecting documents that reasonably appear to be genuine and to relate to the person. It is prohibited by 8 U.S.C. 1324b(a)(6), enforced by the Justice Department's Immigrant and Employee Rights Section (IER), applies to employers of any size, and as of November 2026 carries a civil penalty of $236 to $2,364 for each person affected. A benign motive is not a defense.

This page covers the legal test, the situations where it usually happens, and what a charge looks like. The document lists themselves are in I-9 List A, B and C documents, the interview side is in work authorization questions in interviews, and ICE's paperwork fines are in Form I-9 penalties.

What counts as document abuse under the law?

The regulation, 28 CFR 44.200(a)(3), makes it an unfair practice, for purposes of satisfying the Form I-9 requirements, to request more or different documents than are required, or to refuse to honor documents that on their face reasonably appear to be genuine and to relate to the individual, when that is done for the purpose or with the intent of discriminating. It applies "regardless of whether such documentary practice is a condition of employment or causes economic harm to the individual." The M-274's Section 11.2 sorts the same rule into three kinds of conduct: asking for more or different documents, asking for a particular document such as a Permanent Resident Card, and rejecting reasonably genuine documents.

Three details in the definitions decide most cases:

• It covers every verification step, not just Section 2. Under 28 CFR 44.101(f), the phrase means completing Form I-9 "or for the purpose of making any other efforts to verify an individual's employment eligibility, including the use of 'E-Verify.'" Reverification, E-Verify cases and internal audits are all inside it.
• Intent is defined broadly. Section 44.101(g) says an act is done with intent to discriminate when it intentionally treats someone differently based on national origin or citizenship status, "regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility." A rule such as "we ask every noncitizen for their green card, to be safe" is exactly that.
• Size does not matter. IER's Types of Discrimination page says employers "of any size" may not demand more or different documents, request specific documents or reject reasonably genuine-looking documents for these reasons. U.S. citizens are covered too: IER's Form I-9 and E-Verify page warns employers not to "require U.S. citizens who appear 'foreign' to produce a birth certificate."

What does document abuse look like in practice?

Most charges start with a habit, not a decision. These are the situations USCIS and IER name, and what to do instead. All are risky when done because of citizenship, immigration status or national origin, which is how they usually happen.

The same patterns show up before hire. M-274 Section 11.4 tells employers not to ask to see documents, or have someone complete Form I-9 before hire, because they look or sound "foreign" or say they are not citizens. Keep documents out of interviews entirely; see Form I-9 timing in hiring.

Is it document abuse to reject a document that looks fake?

No. The duty runs both ways. M-274 Section 11.4 says you "must reject documents that do not reasonably appear to be genuine or to relate to the person presenting them, regardless of their citizenship status or national origin," and M-274 Section 14.0 adds that you must then give the employee the chance to present other documents from the lists. The problem is not rejecting a bad document; it is applying a harder standard to some people than others, or rejecting a valid document because it is unfamiliar. You are expected to examine documents reasonably, not to act as a forensic lab. If you are unsure about an older or unusual version, IER's fact sheet suggests calling IER or USCIS before turning it down. How to record what was presented is in Form I-9 Section 2 instructions.

How does a document abuse charge start, and what happens next?

1. A charge is filed. A worker, or someone acting for them, may file with IER within 180 days of the act (M-274 11.5).
2. IER notifies the employer. The M-274 says IER sends a letter within 10 days and starts its investigation. If the employer does not cooperate, IER can obtain a subpoena for documents or testimony.
3. The matter settles or is litigated. IER may file a lawsuit, and the charging party may too (M-274 11.6).
4. Remedies follow. Settlements and orders can include a cease and desist order, hiring or reinstatement with or without back pay, civil penalties, changes to the practice, posted notices and training for everyone involved in recruiting, hiring and onboarding.
5. Penalties are per person. For penalties assessed after July 3, 2025, the range for unfair documentary practices is $236 to $2,364 per individual discriminated against (28 CFR 85.5). A policy applied to every noncitizen hire multiplies quickly.

Retaliation is a separate violation for employers of any size: you may not intimidate, threaten or retaliate against someone for filing a charge, cooperating with IER or opposing a practice they believe is unlawful (IER, Types of Discrimination).

Can fixing I-9 problems create document abuse?

Yes, and this is where careful employers get caught. An audit or an ICE inspection is still a verification step under 28 CFR 44.101(f). IER's best practices for worksite enforcement audits tell employers not to selectively verify certain employees because of national origin or citizenship after a Notice of Inspection, not to require more documents than ICE is requiring, not to limit the range of documents employees may present, and not to treat workers differently because they look or sound foreign. The joint IER and ICE internal audit guidance adds that a sample audit should be chosen on neutral criteria. If you are auditing, use the I-9 audit checklist and apply it to everyone; if ICE has already written to you, see what an I-9 Notice of Inspection requires.

Do staffing agencies and recruiters face the same rule?

Yes. Section 1324b covers recruitment and referral for a fee as well as hiring, and IER's best practices page says "employers, recruiters, and referrers for a fee" may not request specific documents, require more or different documents, or reject valid documents because of citizenship status or national origin. Two agency situations come up often:

• A client asks for a document. "Only send people with a passport" or "green card holders only" is a request to screen by document. Ask whether a law, regulation, executive order or government contract requires a citizenship restriction for the role; if not, explain that the agency cannot apply it. When a restriction is lawful and how to word it is covered in can a job require U.S. citizenship, and the hiring side of the rule in citizenship status discrimination in hiring.
• Different branches, different habits. The agency completes Form I-9 for its own employees, so one branch asking every noncitizen for an EAD is the agency's practice, not the recruiter's. Write one document procedure and use it at every branch; E-Verify for staffing agencies covers the E-Verify side.

What should HR say about documents?

The safest script names the rule and leaves the choice with the employee. An E-Verify employer may also say that any List B document must carry a photo, because the Form I-9 instructions require that for E-Verify employers.

For your Form I-9, please bring original, unexpired documents by
your third day: EITHER one document from List A, OR one from List B
plus one from List C. The lists are attached and the choice is yours.
[E-Verify employers: any List B document must have a photo.]
If a document was lost, stolen or damaged and you applied for a
replacement, the replacement receipt may work for now. Ask us.

A checklist to prevent document abuse

• Send the Lists of Acceptable Documents with every offer, never a list of what to bring.
• Train everyone who completes Section 2 or Supplement B to stop at one List A or one B plus C.
• Use one written procedure for all hires, branches and clients, including copying documents.
• Reverify only expiring employment authorization, with any List A or List C document the employee picks.
• In E-Verify, use the Form I-9 information you already have; never ask for new documents because of a mismatch.
• Run audits on neutral criteria, and give every employee the same time and document choices.
• Check job ads, application forms and client job orders for document requirements.
• Keep IER's employer hotline, 1-800-255-8155, in the onboarding manual for unclear cases.