I-9 Compliance…More is Not Better

by Blake Forrester August 3, 2011

In an effort to be thorough and to ensure compliance with governmental regulations, companies are sometimes overzealous. This is of special concern in the case of the Form I-9 Employment Eligibility Verification process.

The need to prove that all of the company's employees are eligible to work in the United States has caused some employers to demand more documentation from non-citizens than is required by law. This is illegal. It can even trigger an unwelcome civil rights lawsuit initiated by the Department of Justice (DOJ).

The requirements placed on companies by The Immigration Reform and Control Act (IRCA) are:

  • To hire only persons authorized to work in the United States.
  • Not to discriminate on the basis of citizenship status or national origin.

In addition, employers are required to "treat all employees the same during the Form I-9 Employment Eligibility Verification process, regardless of their citizenship status," by the Immigration and Nationality Act (INA).

An employer may not:

  • Require more or different documents from noncitizens than from citizens.
  • Ask for documentation prior to employment if the employer suspects the applicant is not a citizen or has a foreign-sounding name.
  • Refuse to accept documentation with a future expiration date.
  • Refuse to allow the employee to choose which of the eligible documents he will provide.
  • Refuse to hire non-citizens except when the position requires citizenship by law.
  • Refuse to accept any documentation allowable by law.
  • Intimidate or retaliate against any employee who alleges discrimination, or who supports another employee's claim of discrimination.
  • Require an employee to present different or more documentation during the re-verification process than during the original eligibility process.

There is an entire section Department of Justice's Civil Rights Division, called the Office of Special Counsel for Immigration-Related Unfair Employment Practices ("OSC"), devoted to enforcing the anti-discrimination provision of the INA. Usually, within seven months after the receipt of a complaint, the OSC completes its investigation.

If the OSC determines that a company has engaged in a pattern or practice of discriminatory acts by requiring additional and unnecessary documentation to verify the work eligibility of noncitizen employees as compared to documentation required/requested of U.S. citizens, it can file a lawsuit against the company in court. In addition to legal penalties, a company found guilty of these practices may be forced to pay the victim(s) various types of relief.

A company's best option is to adhere strictly to the letter of the law and not adopt the attitude that "more is better."

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