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Can the I-9 process be discriminatory?

Since late 1986, most employers in the U.S. have had a legal obligation to verify both the identity and work eligibility of all new hires. To do so, they complete Form I-9, Employment Eligibility Verification, and retain it for the duration of employment plus some period after.

While new hires must provide documentation to prove their identity and legal work authorization, it is possible for employers to use the I-9 process in a discriminatory fashion.

Documentation

When asking new employees to complete Form I-9, employers should provide them with the form’s instructions. This includes the List of Acceptable Documents. According to the U.S. Citizenship and Immigration Service’s Handbook for Employers, employees may provide any acceptable documentation they choose.  Provided the documentation appears on the List of Acceptable Documents, employers typically may not request different or additional documentation.

Temporary status

Some employees have temporary work authorization. When this authorization expires, employers usually must examine new documentation to determine whether there has been an extension of employment eligibility. Reverification of work eligibility for citizens and legal permanent residents is not generally appropriate.

E-Verify

Many employers participate in the federal government’s E-Verify program. This program allows employers to compare information from the I-9 with government databases. Using the E-Verify program selectively or to target specific workers may violate E-Verify’s memorandum of understanding and federal law.

Employers clearly must walk a fine line when completing the employment eligibility verification process, being careful to comply with the law while not discriminating against workers. Ultimately, if the I-9 process becomes discriminatory, affected workers may have grounds to support an official complaint.

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