Form I-9s and Document Abuse by Employers

Every U.S. employer must properly complete a Form I-9 for each individual hired for employment in the United States. The Form I-9 is used for verifying the identity of such individuals, as well as the authorization of the individuals to work in the United States.

On the Form I-9, the employee must attest to the employee’s authorization to work in the U.S. The employee must also present the employer with proper documentation evidencing the employee’s identity and authorization to work.

The Immigration Reform and Control Act of 1986 (“IRCA”) makes it illegal for employers to discriminate with respect to hiring, firing, or recruitment or referral for a fee, based upon an individual’s citizenship or immigration status. For example, the law prohibits employers from hiring only U.S. citizens or lawful permanent residents unless required to do so by law, regulation or government contract. IRCA also prohibits employers from preferring to hire temporary visa holders or undocumented workers over qualified U.S. citizens or other protected individuals, such as refugees or individuals granted asylum.

Employment eligibility verification should be conducted after an offer to hire has been made because of claims of potential discrimination. Thus, the employer should not request the employee to complete the Form I-9 until after an offer of employment has been conveyed to the candidate for employment.

With respect to the proper documentation to be provided by the employee, employers must be careful regarding the potential liability for document abuse in the Form I-9. Document abuse can be broadly categorized into four types of conduct:

  1. Improperly requesting that employees produce more documents than required by Form I-9 to establish identity and employment authorization;
  2. Improperly requesting that employees present a particular document, such as a “green card,” to establish identity and/or employment authorization;
  3. Improperly rejecting documents that reasonably appear to be genuine and to relate to the employee presenting them; and
  4. Improperly treating groups of applicants differently when completing Form I-9.

As an example, if a candidate for employment provides the employer with a valid U.S. passport (which is categorized as a List A document on the Form I-9) to establish identity and the authorization to work in the U.S., the employer must not request that the candidate also provide a valid driver’s license (which is a categorized as a List B document).

Moreover, future expiration dates on the employment authorization documents should not be considered in determining whether an individual is qualified for a particular position. Considering a future employment authorization expiration date in determining whether an alien is qualified for a particular job may constitute employment discrimination.

The above practices may constitute unlawful document abuse and should be avoided when verifying employment authorization. All employment-authorized individuals are protected against this type of discrimination. Employers who commit document abuse may be ordered to pay a civil money penalty of not less than $220 and not more than $2,191 for each individual discriminated against.

Employers who would like assistance with Form I-9 documentation or have any questions about another labor and employment matter should contact Kimberly A. Capadona, Esq. or any member of Archer’s Labor & Employment Law Group in Hackensack, N.J., at (201) 342-6000; in Haddonfield, N.J., at (856) 795-2121; in Princeton, N.J., at (609) 580-3700; in Philadelphia, P.A., at (215) 963-3300; or in Wilmington, D.E., at (302) 777-4350.