Avoid I-9 Discrimination: Document Abuse

One of the key responsibilities of an employer during I-9 and E-Verify employment eligibility verification is to avoid discrimination. The anti-discrimination provisions of the Immigration and Nationality Act (INA) §274B, 8 U.S.C. §1324b, prohibit four types of conduct:

(1) Citizenship or immigration status discrimination (actual or perceived)
(2) National origin discrimination (actual or perceived)
(3) Document abuse
(4) Retaliation

Perhaps the most common form of discrimination is document abuse, which can take multiple forms. For example, an employer representative cannot request more documentation than necessary; this is referred to as overdocumentation. Neither can an employer representative refuse to honor a document if it appears to be genuine on its face and relates to the person presenting it. Neither can an employer representative request a specific document of a new employee.

This last situation is a very common, seemingly innocent example of document abuse. This often occurs when a new foreign national employee present an array of documents for employment eligibility verification. After filling out Section One of Form I-9 to the best of his ability, he hands over a pile of documents to the employer representative. Language and cultural barriers hinder the foreign national employee from clearly understanding which document or combination of documents are required to verify valid work authorization. Out of confusion and even frustration, the foreign national employee wants the employer representative to pick out the appropriate document(s). Even if the foreign national employee has the proper documents in the pile that he presents, the regulations prohibit the employer representative from picking them out. This could be construed as discriminatory because the employer representative is essentially telling the foreign national which documents to use for verification.

What makes the employer representative’s job even more confusing and difficult is that INA actually allows for certain forms of discrimination during the hiring process. These include hiring a U.S. citizen over a foreign national if both are equally qualified for the position as well as only hiring U.S. citizens in compliance with a government contract.

The anti-discrimination regulations of the INA can be difficult for employer representatives to understand and remain compliant. Clearly classifying as discrimination the advising, suggesting, or even directly selecting an employee’s document for verification purposes while allowing the hire a U.S. citizen over a foreign national with equal qualifications can appear inconsistent and lead an employer representative to second-guess its corporate employment eligibility verification policies and procedures.

Employers who knowingly violate or circumvent the I-9 process or anti-discrimination requirements of the INA may be subject to criminal and/or civil penalties. Employers would should have known its corporate practices are discriminatory may be subject to similar penalties. Furthermore, the newest Form I-9 allows for criminal and/or civil penalties to be extended to the employer representative personally.

Employers may contact the Office of Special Counsel (OSC) to obtain additional information regarding discrimination and employer responsibilities:

1-800-255-8155 (TDD: 1-800-362-2735)

Employees may also contact the OSC to obtain additional information regarding employee rights and responsibilities and remain anonymous:

1-800-255-7688 (TDD: 1-800-616-5525)

To learn more about discrimination during employment eligibility verification and best practices to avoid it, please contact your employment/immigration legal representative.

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