The Do’s and Don’ts for I-9 Verification

The Justice Department recently announced that Postal Express Inc., a delivery and logistics company operating in Washington, Oregon and Idaho agreed to pay a civil penalty to settle a discrimination claim brought by a foreign-born employee who was suspended after the company improperly demanded he present a new green card.
The DOJ investigation revealed that Postal Express improperly required the employee, a lawful permanent resident, to present a new permanent resident card (green card), and suspended him when he failed to do so. Earlier this year, the DOJ announced a similar settlement of a claim against retailer Abercrombie & Fitch Inc. The department’s investigation found that Abercrombie required a non-U.S. citizen to produce a green card as proof of her immigration status for the purpose of verifying her employment eligibility, while not requiring U.S. citizens to do the same.
If your palms are sweating as you read this, you’re not alone. States are passing laws that impose significant fines on companies that employ undocumented workers. At the same time, the immigration system in the U.S. and the many documents and agencies involved is confusing for both employees and employers attempting to verify work status. The federal government’s E-Verify system for checking an employee’s work eligibility is not always reliable and can be difficult to navigate. Furthermore, while E-Verify is mandatory for private employers in seven states, it remains voluntary elsewhere, and in California government enforcement of the system is illegal.
The long and short of it is that the Immigration Reform and Control Act of 1986 (IRCA) prohibits employers from hiring and employing workers when the employer knows the workers are not authorized to work in the United States. Employers are also prohibited from continuing to employ an individual knowing that he or she is unauthorized for employment. At the same time, under the Immigration and Nationality Act, employers are prohibited from requesting unnecessary work authorization documents or demanding specific documentary evidence based on citizenship status or national origin when verifying employment status. This creates a tangled web for employers where HR and hiring manager must balance the fear of hiring an employee without proper authorization against the fear of requesting improper documentation in the process. It is easy to see how an HR professional or hiring manager, acting out of fear of inadvertently hiring an individual without proper authorization could misstep and violate an applicant’s rights, while only attempting to protect the company.
So what is an employer to do?
The steps below may help:

  • Provide all news employees with the complete I-9 form, including instructions for completion.
  • If an employee submits documentation of work eligibility that appears to be genuine, accept it.
  • Conversely, reject any document that does not appear to be genuine or related to the employee.
  • Allow employees the choice of what documentation to produce from the list included on the I-9 form. Do not demand a U.S. passport or “green card.

Easy enough, right? Maybe. Maybe not. In case it isn’t clear, here is a DO NOT list provided by the United States Citizenship and Immigration Service. Do not do any of the following:

  • Do not demand that an employee show specific documents because of his or her national origin, ethnicity, immigration or citizenship status, race, color, religion, age, gender or disability, or because of any other protected characteristic. This means no requesting specific documentation from Homeland Security because an employee isn’t a U.S. citizen, or requiring a passport as proof of identity from a U.S. citizen because his or her name sounds foreign.
  • Do not refuse to accept an employee’s I-9 documentation or refuse to hire the employee because of an unfounded suspicion that the document is fraudulent.
  • Do not treat employees or applicants differently than other applicants because he or she is, or you believe him or her to be a U.S. citizen or non-citizen.
  • Do not ask to see employment authorization documents before you hire an applicant or before the applicant completes the Form I-9.
  • Do not refuse to accept an employee’s I-9 document or refuse to hire him or her because the document expires in the future..
  • Do not limit jobs to U.S. citizens unless U.S. citizenship is required by law or government contract.
  • Do not demand a specific document when re-verifying that an employee is authorized to work. Remember, employees may present any document either from List A or from List C to demonstrate that they are still authorized to work.
  • Do not retaliate against an employee for complaining about discrimination or otherwise asserting the employee’s rights under the law, contacting the Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, or the Equal Opportunity Commission for assistance or to file a complaint, or for participating in an investigation or lawsuit on behalf of an alleged victim.

Finally, proper employee training and policies are the best way to stay on the right side of the law here.

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