Under federal law, most employers in the U.S. have an affirmative obligation to verify the identity and work eligibility of everyone they hire. To do so, employers inspect documentation and complete Form I-9, Employment Eligibility Verification. Part of this form is completed by the employer, and part by the employee.
Even though employers must ensure they do not employ unauthorized workers, they also cannot discriminate against anyone who has legal work authorization. Regrettably, some employers use the I-9 process to discriminate against individuals based on their race, national origin or citizenship status.
The instructions for Form I-9 are clear: employees may present any document from List A or any acceptable combination of documents from List B and List C. So long as the employee provides documentation that complies, the employer should not ask for specific or different documentation. There are some exceptions to this rule, however.
Some legally authorized workers have temporary work authorization. When this authorization expires, employers must examine documentation to verify the employee continues to be eligible to work in the U.S. If the employee is a citizen or legal permanent resident, the employee’s work authorization never expires. Consequently, if the employer asks the employee to provide updated documentation, the employee may allege this to be a form of workplace discrimination.
If an employee complies with the employment eligibility verification process, the employer should not take adverse employment actions against the employee. If an employer fires an employee despite compliance, the employee may have a valid cause of action for wrongful termination.
Even though it is part of the employment process, the I-9 verification should not unfairly target or harass an employee. Ultimately, if an employee suspects the employer is using the I-9 to discriminate against him or her, the employee may need to act quickly both to assert legal rights and to save his or her job.