While essential for maintaining a legal workforce, the Form I-9 process can unfortunately be a point of potential discrimination if employers do not adhere strictly to the law. U.S. Citizenship and Immigration Services (USCIS) is committed to educating employers about their responsibilities in preventing discrimination during Form I-9 verification. This article will elaborate on the prohibited discriminatory practices, provide guidance on lawful Form I-9 procedures, and highlight the resources available to both employers and employees to ensure fairness and prevent discrimination, drawing upon information from the USCIS I-9 Central website and its related links.

Understanding the Anti-Discrimination Provision

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 three key areas:

  1. Hiring: Employers cannot prefer to hire U.S. citizens over work-authorized noncitizens, or vice versa, unless specifically required by law, regulation, or government contract. This means all individuals authorized to work in the U.S., regardless of their citizenship or national origin, should have an equal opportunity for employment.

  2. Firing: Employers cannot terminate an employee based on their citizenship status or national origin. Once an individual is legally employed, their protected characteristics should not be a factor in termination decisions.

  3. The Form I-9 Verification Process: This is where the anti-discrimination provision has significant implications. Employers must follow specific, non-discriminatory procedures when completing the Form I-9.

Prohibited Discriminatory Practices in the Form I-9 Process

Employers must be vigilant in avoiding discriminatory actions during the Form I-9 process. Some common examples of prohibited practices include:

  • Citizenship Status Discrimination:
    • Preferring to hire U.S. citizens over noncitizens who have valid work authorization.
    • Rejecting valid, legally acceptable documents presented by noncitizens.
    • Demanding that noncitizens produce specific documents when other legally acceptable documents are available from the Lists of Acceptable Documents.
    • Treating noncitizen employees differently during reverification or when their employment authorization documents expire.
  • National Origin Discrimination:
    • Treating individuals differently based on their place of birth, ancestry, or linguistic characteristics (unless language is a bona fide occupational qualification).
    • Subjecting employees of a certain national origin to closer scrutiny during the Form I-9 process than employees of other national origins.
  • Document Abuse:
    • Asking for more documents than are legally required to complete the Form I-9. Employers must accept any combination of acceptable documents presented by the employee from List A (identity and employment authorization) OR one document from List B (identity) and one document from List C (employment authorization). (Refer to the “Lists of Acceptable Documents” on the I-9 Central website for the complete lists).
    • Rejecting documents that appear to be reasonably genuine on their face and relate to the employee. Employers are not required to be document experts.
    • Specifying which document(s) an employee must present.

Lawful and Non-Discriminatory Form I-9 Procedures

To ensure compliance with the anti-discrimination provision, employers should adhere to the following lawful Form I-9 procedures:

  1. Complete Section 1 of Form I-9: Have the employee complete Section 1 of the Form I-9 by their first day of employment. Provide assistance if needed, but do not complete it on their behalf. Ensure the employee understands their right to choose which acceptable documents to present.

  2. Examine Documents: Within three business days of the employee’s first day of employment, examine the original (or certified copies where explicitly permitted by regulation, though generally originals are required for List A) document(s) presented by the employee from the Lists of Acceptable Documents to determine if they appear to be reasonably genuine and relate to the employee.

  3. Complete Section 2 of Form I-9: Properly complete Section 2 of the Form I-9, recording the document title(s), issuing authority, document number(s), and expiration date(s) (if any). Return the original documents to the employee.

  4. Accept Any Combination of Acceptable Documents: Remember that the employee has the right to choose which acceptable documents to present. Do not demand specific documents or ask for more than one document from List A or one from List B and one from List C.

  5. Treat All Employees Equally: Apply the same Form I-9 procedures to all newly hired employees, regardless of their citizenship status or national origin. Avoid singling out certain employees for closer scrutiny or demanding additional documentation.

  6. Follow Proper Procedures for Reverification: If an employee’s employment authorization document expires, follow the established reverification procedures outlined in Section 3 of the Form I-9 and USCIS guidance. Do not reverify U.S. citizens or lawful permanent residents who presented a List A document (such as a Green Card or U.S. passport) that has expired. (Refer to the “Completing Section 3, Reverification and Rehires” section on the I-9 Central website for detailed reverification rules).

  7. Understand Automatic Extensions: Be aware of any automatic extensions of Employment Authorization Documents (EADs) that USCIS may announce for certain categories. Follow USCIS guidance on how to document these extensions on the Form I-9. (Refer to USCIS announcements and the “Automatic EAD Extension” information, typically found in news alerts or specific guidance on the USCIS website).

Resources for Preventing Discrimination

USCIS and the Department of Justice provide numerous resources to help employers understand their obligations and prevent discrimination in the Form I-9 process:

  • USCIS I-9 Central Website: This website is the primary hub for all Form I-9 related information, including the Handbook for Employers (M-274), which contains a dedicated section on unfair immigration-related employment practices and how to avoid discrimination (Section 8.0).
  • Handbook for Employers (M-274): This comprehensive guide provides detailed instructions on completing the Form I-9 correctly and includes crucial information on the anti-discrimination provision. Employers should familiarize themselves with this handbook.
  • IER (Immigrant and Employee Rights Section) Website (U.S. Department of Justice, Civil Rights Division): The IER website ([link to the Justice Department’s Civil Rights Division website, specifically the IER section]) offers extensive resources for employers and employees on preventing discrimination in the employment context, including FAQs, educational materials, and guidance on employer best practices.
  • IER Employer Hotline: Employers can contact the IER Employer Hotline for technical assistance and guidance on preventing discrimination during the Form I-9 process. Contact information is available on the IER website.
  • USCIS Webinars and Training: USCIS often conducts webinars and provides training materials for employers on proper Form I-9 completion and avoiding discrimination. Information on upcoming webinars and archived materials can usually be found on the USCIS website.
  • E-Verify Employer Resources: For employers who use E-Verify, the E-Verify website (https://www.e-verify.gov/) also provides information and resources related to non-discrimination in the context of electronic verification.

Consequences of Discrimination

Engaging in discriminatory practices during the Form I-9 process can have serious legal and financial consequences for employers. The IER is responsible for investigating and prosecuting charges of immigration-related employment discrimination. Penalties for discrimination can include:

  • Civil fines and penalties.
  • Back pay for affected employees.
  • Hiring orders.
  • Training and monitoring requirements.

Conclusion

Preventing discrimination in the Form I-9 employment eligibility verification process is not only a legal obligation but also a matter of ethical and fair employment practices. Employers must understand the prohibited discriminatory actions and adhere strictly to the lawful procedures outlined by USCIS. By utilizing the comprehensive resources provided by USCIS and the Department of Justice, employers can ensure a fair and non-discriminatory hiring process for all work-authorized individuals in the United States, fostering a diverse and inclusive workforce. Employees who believe they have experienced discrimination have the right to seek redress through the appropriate channels. A commitment to understanding and upholding these principles is essential for maintaining a lawful and equitable employment environment.

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