On one hand, employers have to comply with the law and be sure they’re not hiring someone who does not have work authorization in the US. This means taking care to be very diligent during the I-9 process and making sure to “dot your i’s and cross your t’s.”
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On the other hand, employers have to be wary of committing discrimination during the I-9 process. Committing discrimination during this process may be easier to do than it seems, since it can be the result of good intentions gone awry during the process of ensuring someone is truly authorized to work in the US.
In general, there are two issues commonly seen during the I-9 process: citizenship status discrimination and document abuse that amounts to discrimination.
Avoiding Citizenship Status Discrimination and Document Abuse in the I-9 Process
Citizenship status discrimination occurs when an organization treats someone differently because of their citizenship or immigration status or national origin.
An example is when a new employee notes they are a legal permanent resident, and then presents a drivers’ license and social security card as their documentation. This is perfectly acceptable documentation for the I-9 form.
If the employer goes back to the employee and requires that they also present their green card or use it instead of one of the other legal documents, this is illegal. It is considered citizenship status discrimination because you’re treating that person differently by asking them for more documents. It also would be a form of document abuse (see below).
National origin discrimination may come in the form of “English-only” policies or by refusing to hire individuals based upon appearance. It could also come in the form of having a different hiring process for these individuals or requiring more steps to be completed. These are just a few common examples of where national origin discrimination can come into the hiring process.
Document abuse refers to “requesting more or different documents than what are legally required to complete the I-9 form.” Valentine Brown explained in a recent BLR webinar. This is the most common form of discrimination that can come about as part of the I-9 process.
As noted above, it can happen as part of a discriminatory practice as well. Companies should audit their I-9 process to ensure this does not happen and to correct any processes that look suspect.
For more information on avoiding citizenship status discrimination and document abuse in the I-9 process, order the webinar recording of “Immigration Recordkeeping: Best Practices for Completing and Storing I-9s.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney Valentine A. Brown, a partner at Duane Morris LLP in Philadelphia, serves as global immigration law counsel to a diverse group of multinational and domestic corporations and their employees. She provides advice, compliance audits, and representation to help navigate the intricacies of U.S. and foreign immigration laws.