All in the Name: Employee Names and the Form I-9
What is your name? It seems like a simple enough question, but the Form I-9 has managed to make even this question complicated. Although the two-page Form I-9 is accompanied by a 70-page handbook (M-274) and a website dedicated to its nuances, bright-line rules dictating an employer's responsibilities for the variety of possible situations that may result in a name discrepancy are hard to find. For example, what is an employer's responsibility when an employee's name on the document(s) presented do not match the name the employee wrote in Section 1? The answer may be surprising: it depends upon the employee's explanation of the discrepancy. The M-274 Handbook for Employers provides the following directive: employers "may accept a document with a different name than the name entered in Section 1 provided that [the employer] resolve[s] the question of whether the document reasonably relates to the employee."
If the employer believes the employee's explanation provides reasonable clarification for the discrepancy and the document(s) reasonably relates to the person presenting the document(s), the document(s) is acceptable in spite of the discrepancy. The employee may have been recently married or divorced. The employee may have changed their name or "Americanized" it. Maybe the issuing agency misspelled it. If an employer is not convinced that the document(s) reasonably relates to the employee, the employer may tell the employee that the document(s) cannot be accepted for I-9 purposes and request an additional document(s).
The M-274 recommends attaching a memorandum to the Form I-9 to document the employee's explanation and any additional facts that lend credibility to the employee's explanation. The M-274 notes that additional documentation of the employee's name is not required but if documentation is volunteered by the employee, the employer can keep a copy of the volunteered documentation with the Form I-9.
The M-274 Handbook also states that the Department of Homeland Security (DHS) does not require a specific naming standard and suggests DHS will tolerate an employer's acceptance of documents containing slight spelling variations provided the employee offered a reasonable explanation for the variation, and the document(s) otherwise appears to be genuine and reasonably relate to the employee presenting the document(s).
So what's in a name? It could be more than expected.
If you have questions related to the Form I-9, including training opportunities, please contact Grace Miller, Jenifer Brown or another member of the immigration practice.