I-9 Central: Discrimination
Refugees and asylees, as well as some other classes of nonimmigrants such as certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands, are authorized to work because of their status and have no expiration date on their employment authorization. Such individuals should check “An alien authorized to work,” write “N/A” in the first space because their employment authorization does not expire., He or she should then write their Alien Number or Admission Number in the second space, You may not require that the individual include an expiration date or request to see a document containing an expiration date. The individual may choose to present a Form I-94/I-94A that does not have an expiration date or any combination of documents from the Lists of Acceptable Documents. The information from the documents presented from the Lists of Acceptable Documents is for completion of Section 2, and not Section 1. Refusing to hire employment-authorized individuals because they are unable to provide an expiration date on Form I-9 is a violation of the anti-discrimination provision in the INA.
Call the Equal Employment Opportunity Commission (EEOC):
- 1-800-669-6820 (TTY); or Visit EEOC’s website at http://www.eeoc.gov/.
Call the Immigrant and Employee Rights Section (IER)
(IER) employee hotline:
- 1-800-237-2515 (TDD); or
- Visit the IER website, http://www.justice.gov/ier, for more information and to download a charge form.
Employers should call Immigrant and Employee Rights Section (IER)’s employer hotline with questions:
- 1-800-362-2735 (TDD);
- Visit the IER website, http://www.justice.gov/ier, for more information and to sign up for a free employer webinar to inform you of your obligations under the anti-discrimination provision.
Immigrant and Employee Rights Section (IER) will notify the employer in writing to initiate an investigation, request information and documents, and interview the employer’s employees. If the employer refuses to cooperate, IER can obtain a subpoena to compel the employer to produce the information requested or to appear for an investigative interview.
Once DHS notifies an employer that an employee may have presented documents that appear to be suspect or invalid as proof of employment authorization, it is incumbent on the employer to take reasonable actions to verify the employment eligibility of the employee. Verification of employment authorization must be conducted in the time reasonably necessary to determine the employment authorization of the individual concerned. The law does not allow for any period of continued employment of an unauthorized employee, nor authorize any delay in the verification of the employment authorization of an employee for the purpose of replacing terminated employees.
Employers determined to have knowingly hired or continued to employ unauthorized workers under INA § 274A(a)(1)(a) or (a)(2) (8 U.S.C. § 1324a(a)(1)(a) or(a)(2)) will be required to cease the unlawful activity, may be fined, and in certain situations may be criminally prosecuted. Additionally, an employer found to have knowingly hired or continued to employ unauthorized workers may be subject to debarment by ICE, meaning that the employer will be prevented from participating in future federal contracts and from receiving other government benefits.
Employees are entitled to file a discrimination charge. However if you are presented with documentation that does not reasonably appear to be genuine or to relate to the employee, you may not accept that documentation. While you are not legally required to inform DHS of such situations, you may do so if you choose. However, DHS is unable to provide employment eligibility verification services other than through its E-Verify program. If you treat all employees equally and do not single out employees based on their national origin or citizenship status for closer scrutiny, you are unlikely to be found to have engaged in unlawful discrimination.
- Treat employees equally when recruiting, hiring, and terminating employees, and when verifying employment eligibility through the Form I-9 and E-Verify processes.
- Allow all employees, regardless of national origin or immigration status, to choose which document or combination of documents they want to present from the Lists of Acceptable Documents of the Form I-9. For example, an employer may not require a non-U.S. citizen to present an Employment Authorization Document issued by DHS if he or she chooses to present a driver’s license and unrestricted Social Security card.
Employers should NOT:
- Set different employment eligibility verification standards or require that different documents be presented by employees because of their national origin or citizenship status. For example, employers cannot demand that non-U.S. citizens present DHS-issued documents like “green cards”.
- Ask to see a document with an employee’s Alien or Admission Number when completing Section 1 of the Form I-9.
- Request to see employment eligibility verification documents before hire or completion of the I-9 Form because someone looks or sounds “foreign,” or because someone states that he or she is not a U.S. citizen.
- Refuse to accept a valid employment eligibility document, or refuse to hire an individual, because the document has a future expiration date.
- Reverify the employment eligibility of a lawful permanent resident (“LPR”) whose “green card” (i.e., Form I-551, Permanent Resident Card) has expired after the LPR is hired.
- Require that, during reverification, an employee present a new unexpired Employment Authorization Document. For reverification, employees are free to choose any document either from List A or from List C of the I-9 Form, including an unrestricted Social Security card.
- Limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law, regulation, executive order, or federal, state or local government contract.