Asking New Hires for Specific Work Authorization Documents is Illegal

This past March, the U.S. Department of Justice (DOJ) settled with a company to resolve an investigation over allegations that they asked foreign-born legal resident workers to produce green cards as proof of employment eligibility. As a result, the company has agreed to pay a civil penalty of $140,000, retrain their human resources staff and be subject to regulatory monitoring and reporting requirements.

As an important reminder, all workers (including foreign workers) are allowed under the Immigration and Nationality Act (INA) to prove their work authorization by choosing valid documentation from the list of acceptable documents. As an employer it is your responsibility to provide the list to new employees and have them select the documents that they will present for completion for Section 2 of the Form I-9.

The DOJ’s investigation concluded that the fined company routinely requested that lawful permanent residents produce a permanent resident card to prove their work authorization, while at the same time not requesting any specific document from U.S. citizens. When an employer requires certain documents from some individuals but not others, this may lead to a claim of discrimination based on national origin or citizenship under the INA.

Additionally, if an employer asks for further specific documents along with the documents that are already provided by the employee, this is called “over-documentation” and is also a violation.

Both of these examples are referred to as “document abuse” and falls under the regulatory eye of the DOJ’s Immigrant and Employee Rights Section, formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices.

When an individual checks the box in section 1 of the Form I-9 to indicate that they are lawful permanent residents, he/she can present either a permanent resident card or a driver’s license and unrestricted social security card.

At DecisionHR we pride ourselves in staying in the forefront, continuously monitoring and regulating industry changes and its possible impact on your business.

Contact your HR Business Partner for additional information on this issue or any questions you may have.