he Form I-9, Employment Eligibility Verification, is a critical document used by employers in the United States to verify the identity and employment authorization of newly hired employees. While the responsibility for proper completion and maintenance of the Form I-9 primarily rests with the employer, employees also possess fundamental rights and access to resources throughout this process.

Fundamental Rights in the Form I-9 Process

As an employee undergoing the Form I-9 verification process, you are entitled to several key rights designed to ensure fairness, prevent discrimination, and protect your personal information:

1. The Right to Choose Which Acceptable Documents to Present:

Employers cannot specify which documents from the Form I-9 Lists of Acceptable Documents an employee must present. You have the right to choose which valid, original (or certified copies where permitted by regulation, though generally originals are required for List A) documents you wish to provide from List A (which establishes both identity and employment authorization) OR one document from List B (establishing identity) and one document from List C (establishing employment authorization).

• List A Documents: These single documents prove both your identity and your authorization to work in the U.S. Examples include:
  • U.S. Passport or U.S. Passport Card
  • Permanent Resident Card (Green Card), Form I-551
  • Employment Authorization Document (EAD), Form I-766
  • Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa (MRIV)
  • For a nonimmigrant authorized to work for a specific employer incident to status, a foreign passport with an Form I-94 bearing the same name as the passport and an endorsement of their nonimmigrant status
  • Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 indicating nonimmigrant admission under the Compact of Free Association
• List B Documents: These documents establish your identity. Examples include:
  • Driver’s license or identification card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
  • ID card issued by a federal, state, or local government agency or entity, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
  • School identification card with a photograph
  • Voter’s registration card
  • U.S. Military card or draft record
  • Military dependent’s ID card
  • U.S. Coast Guard Merchant Mariner Card
  • Native American tribal document
  • Driver’s license issued by a Canadian government authority
  • For individuals under 18 who are unable to present a document listed above:
    • School record or report card
    • Clinic, doctor, or hospital record
    • Day-care or nursery school record
• List C Documents: These documents establish your employment authorization. Examples include:
  • A Social Security card, unless it contains the restriction “Not valid for employment”
  • Certification of Birth Abroad issued by the Department of State, Form FS-545
  • Certification of Report of Birth issued by the Department of State, Form DS-1350
  • Original or certified copy of a birth certificate issued by a state, county, municipal authority, or outlying possession of the United States bearing an official seal
  • Native American tribal document
  • U.S. Citizen ID Card, Form I-197
  • Identification Card for Use by Resident Citizen in the United States, Form I-179
  • Unexpired employment authorization issued by the Department of Homeland Security (DHS) (other than the Form I-766 EAD)

Important Note: Employers cannot ask you to present a specific document or demand more documents than are legally required to complete the Form I-9. Doing so may constitute unlawful discrimination.

2. The Right to Protection Against Discrimination Based on Citizenship Status or National Origin:

The anti-discrimination provision of the Immigration and Nationality Act (INA) prohibits employers from discriminating against individuals based on their citizenship status or national origin in hiring, firing, or the Form I-9 verification process. This means employers cannot:

• Prefer to hire U.S. citizens over work-authorized noncitizens.
• Reject valid documents presented by noncitizens that are acceptable for Form I-9.
• Demand specific documents from noncitizens when other acceptable documents are available.
• Treat employees differently based on their immigration status or where they were born.

The Immigrant and Employee Rights Section (IER) of the U.S. Department of Justice’s Civil Rights Division is responsible for enforcing this anti-discrimination provision. If you believe you have experienced discrimination in the Form I-9 process based on your citizenship status or national origin, you have the right to file a charge with the IER. (Refer to the “IER’s website” link, which directs to the Justice Department’s Civil Rights Division website, for information on how to file a charge and learn more about your rights).

3. The Right to Present Documents That Appear Reasonably Genuine on Their Face:

Employers are only required to accept documents that appear to be reasonably genuine and relate to the individual presenting them. Employers are not immigration law enforcement officials and are not expected to be experts in document verification. If the documents you present appear genuine and relate to you, your employer must accept them, even if they are unfamiliar with the specific document. Employers should not ask for additional documentation beyond what is required to complete the Form I-9.

4. The Right to Work While Awaiting a Decision on Your Employment Authorization Application:

In certain circumstances, you may be authorized to work incident to your status or have pre-existing employment authorization that continues while you have a timely-filed application for an extension of that authorization pending with USCIS. This is often referred to as an “automatic extension.” USCIS provides specific guidance on which categories are eligible for automatic extensions and for how long. (Refer to the “Automatic EAD Extension” information, which would be found on the USCIS website, for the latest guidance on categories eligible for automatic EAD extensions and the specific rules and validity periods). Employers should consult USCIS guidance to determine if an employee’s expired EAD has been automatically extended.

Resources Available to Employees

USCIS and other government agencies provide various resources to help employees understand their rights and navigate the Form I-9 process:

• USCIS I-9 Central Website: This is the primary source of information about Form I-9, including the Handbook for Employers (M-274), Lists of Acceptable Documents, and guidance on completing the form. Employees can find valuable information here regarding their responsibilities and rights.
• Employee Rights Overview Page: This specific page on the I-9 Central website serves as a central hub for employees to learn about their rights and access relevant resources.
• Handbook for Employers (M-274): While primarily for employers, Section 8.0 of the Handbook provides information on unfair immigration-related employment practices and employee rights under the anti-discrimination provision.
• IER (Immigrant and Employee Rights Section) Website (U.S. Department of Justice, Civil Rights Division): This website provides comprehensive information about the anti-discrimination provision of the INA, including how to file a charge of discrimination, FAQs for employees, and educational resources.
• USCIS Contact Center: Employees can contact the USCIS Contact Center to ask general questions about the Form I-9 process and their rights. Contact information can be found on the USCIS website’s “Contact Us” page.
• Legal Aid Organizations and Immigration Attorneys: Numerous non-profit organizations and immigration attorneys provide free or low-cost legal services to immigrants, including assistance with understanding their workplace rights and addressing potential discrimination. Resources for finding legal help are often available through bar associations and immigrant rights organizations.

What to Do If You Believe Your Rights Have Been Violated

If you believe your employer has violated your rights during the Form I-9 process, you have several options:

• Talk to Your Employer: In some cases, a misunderstanding can be resolved by directly communicating your rights to your employer and providing them with information from the USCIS website or the IER.
• Contact the IER: If you believe you have experienced discrimination based on your citizenship status or national origin, you have the right to file a charge with the IER. Information on how to do so is available on the IER’s website. There are specific time limits for filing a charge.
• Seek Legal Assistance: Consult with an immigration attorney or a legal aid organization specializing in employment or immigration law. They can provide you with legal advice and representation.

Conclusion

Understanding your rights as an employee in the Form I-9 Employment Eligibility Verification process is crucial for ensuring fair treatment and preventing discrimination. You have the right to choose which acceptable documents to present, the right to be protected against discrimination based on your citizenship status or national origin, the right to present documents that appear reasonably genuine, and in some cases, the right to work while awaiting a decision on your employment authorization. By being aware of these rights and the resources available to you, you can confidently navigate the Form I-9 process and advocate for yourself in the workplace. Employers also have a responsibility to understand and respect these employee rights to ensure compliance with the law and foster a fair and inclusive work environment.