U.S. employers are required to verify the identity and employment eligibility of their workers. To do this, they have to complete an Employment Eligibility Verification Form, also known as Form I-9. The Form I-9 is used to verify the identity of workers, as well as their authorization to work in the United States.
Immigration Reform and Control Act
The I-9 process requires employees to present the employer with one of many possible combinations of documents that prove their identity and employment eligibility. According to the Immigration Reform and Control Act of 1986 (IRCA), it is illegal for employers to discriminate with respect to hiring, firing, or recruitment, based on an individual’s citizenship or immigration status. IRCA also prohibits employers from preferring to hire temporary visa holders or undocumented workers over qualified U.S. citizens or other protected individuals. The IRCA discrimination provisions do not apply to employers with three or fewer employees, but they should not view this as permission to discriminate.
IRCA prohibits an employer from:
- Knowingly hiring an alien who is not authorized to work;
- Hiring any individual without verifying identity and work authorization;
- Continuing the employment of a person if the employer knows or should know that the person is not authorized to work;
- Knowingly forging, counterfeiting, altering or falsifying any document to satisfy any immigration-related requirements;
- Knowingly using, accepting or receiving any false document to satisfy any immigration-related requirements;
- Discriminating in hiring or firing against a citizen or an intending citizen based on national origin or citizenship status;
- Intentionally requiring an employee to present any specific document or combination of documents for Form I-9 purposes;
- Intentionally requiring an employee to present more or different documents than are minimally required for the employment verification process;
- Intentionally refusing to accept documents that reasonably appear to be genuine.
While properly completing the I-9 is key in the event of a government audit, employers have to be careful regarding the potential liability for I-9 document abuse. They need to allow employees to decide which documents they will present for I-9 purposes and treat all new hires consistently in I-9 completion and document collection. Employers should avoid requesting specific documents from non-citizens because this can lead to claims of I-9 document abuse against the company.Use this detailed guide to find out what practices may constitute unlawful document abuse and how to avoid them when verifying employment authorization.
I-9 Document Abuse
I-9 document abuse occurs when employers do not permit a worker to use any combination of documents that are legally acceptable. Instead, they specify which documents employees must use, or require more documents than are legally required by the Form I-9.
Document abuse can occur against newly-hired workers and workers who have already completed the I-9 process.
Employers commit I-9 document abuse at the time of hire if they:
- Request that employees produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization;
- Request that employees present a particular document to establish identity and/or employment authorization;
- Refuse documents that reasonably appear to be genuine and belong to the employee presenting them; and
- Treat groups of applicants differently when completing Form I-9.
I-9 document abuse may also occur when employers demand that employees present documents showing their ability to work in the United States, even after they have successfully completed the I-9 process.
There are only a limited number of circumstances under which an employer can lawfully re-verify a worker’s employment eligibility. These situations include the following:
- An employment authorization document has expired or is about to expire;
- The employer has been informed by Immigration and Customs Enforcement (ICE) that there are problems with its workers’ documents; or
- The employer has constructive knowledge that the worker is not work authorized.
Consequences of Document Abuse
Finding that a company has engaged in I-9 document abuse can lead to fines similar to those issued for improper completion of the form itself.
In case of I-9 document abuse, employees may file a charge of discrimination with the U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) within 180 days of the act of discrimination. If OSC finds there is reasonable cause to believe that immigration-related unfair employment practices may have occurred, they may file an administrative complaint against the employer with the Office of the Chief Administrative Hearing Officer (OCAHO). OSC may also initiate independent investigations to investigate whether the company has engaged in a pattern or practice of discrimination.
There are several remedies that may result from an OSC investigation. These include back pay awards, reinstatement or hiring, and civil penalties against violating employers.Automate the I-9 verification procedure to eliminate I-9 form errors, maintain compliance with the E-Verify process, and save your resources.
Preventing Discrimination in Form I-9 Process
I-9 compliance can be complex and difficult to achieve. That is why employers have to accurately complete Form I-9, to begin with, but also develop, implement and enforce anti-discrimination policies, practices, and procedures. In addition to this, employers should provide workers with appropriate and adequate education on employer responsibilities and worker rights and ensure that everyone conducting Form I-9 verification understands the rules.
To avoid discrimination, employers should treat all job applicants equally when:
- Publishing a job vacancy;
- Accepting applications and resumes;
- Scheduling and performing interviews;
- Releasing job offers;
- Verifying the applicant’s authorization to work;
- Hiring the applicant;
- Terminating the applicant’s employment.
Uniform application of these procedures limits an employer’s exposure to potential claims of I-9 document abuse while allowing the employee to choose the documents which they would like to present. Such practice in combination with regular evaluation of Forms I-9 ensures both I-9 compliance and proper application of anti-discrimination provisions.