Validity of I-9 Documents
According to the USCIS, you must accept any documents from the USCIS's lists of acceptable documents (found on the last page of the Form I-9) as long as they:
Documents you receive from an employee reasonably must appear to be genuine and related to the employee who presents them. If these criteria are met, you comply with the verification requirements for document examination. You are not required to further investigate these documents.
You are liable for accepting documents if you know or have reason to know that the documents are false. USCIS regulations define “knowing” as:
...including not only actual knowledge, but also constructive knowledge... knowledge which may fairly be inferred through notice of certain facts and certain circumstances which would lead a person, through the exercise of reasonable care, to know about certain conditions.
In summary, if you knew or should have known, because of the availability of certain information, that the employee held an unauthorized status and had no right to work, you will be held liable. On the other hand, unfair documentary practices during the Form I-9 process (document abuse) is prohibited by the anti-discrimination protections of the Immigration and Nationality Act. Employers can’t specify which document(s) they will accept for verification, as long as they are on the list of acceptable documents. Instead, employees may choose which document(s) they wish to present from the lists of acceptable documents.
According to the USCIS Handbook for Employers, Guidance for Completing the Form I-9 (M-2740), document abuse occurs when employers treat individuals differently on the basis of national origin or citizenship status in the Form I-9 process. Document abuse can be broadly categorized into four types of conduct:
The Department of Justice has been increasing enforcement efforts to address immigration discrimination, including concerns of document abuse in the I-9 process.
In 2014, California enacted a series of immigration protections. California protects workers against “unfair immigration practices” that are taken in retaliation for exercising rights protected under the California Labor Code. An “unfair immigration related practice” includes the following actions when taken for a retaliatory purpose:
A new California law — effective January 1, 2014 — further provides that an employer may not discharge an employee or in any manner discriminate, retaliate or take any adverse action against an employee because the employee updates or attempts to update his or her personal information, unless the changes are directly related to the skill set, qualifications, or knowledge required for the job.
Workers in California are entitled to the protections of the state Labor Code regardless of whether or not they are legally authorized to work in the United States. If you hire unauthorized employees, you must pay them and follow the state labor laws.
- Are unexpired;
- Reasonably appear on their face to be genuine; and
- Relate to the person presenting them.
Documents you receive from an employee reasonably must appear to be genuine and related to the employee who presents them. If these criteria are met, you comply with the verification requirements for document examination. You are not required to further investigate these documents.
You are liable for accepting documents if you know or have reason to know that the documents are false. USCIS regulations define “knowing” as:
...including not only actual knowledge, but also constructive knowledge... knowledge which may fairly be inferred through notice of certain facts and certain circumstances which would lead a person, through the exercise of reasonable care, to know about certain conditions.
In summary, if you knew or should have known, because of the availability of certain information, that the employee held an unauthorized status and had no right to work, you will be held liable. On the other hand, unfair documentary practices during the Form I-9 process (document abuse) is prohibited by the anti-discrimination protections of the Immigration and Nationality Act. Employers can’t specify which document(s) they will accept for verification, as long as they are on the list of acceptable documents. Instead, employees may choose which document(s) they wish to present from the lists of acceptable documents.
According to the USCIS Handbook for Employers, Guidance for Completing the Form I-9 (M-2740), document abuse occurs when employers treat individuals differently on the basis of national origin or citizenship status in the Form I-9 process. Document abuse can be broadly categorized into four types of conduct:
- Improperly requesting that employees produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization;
- Improperly requesting that employees present a particular document, such as a “green card.” to establish identity and/or employment authorization;
- Improperly rejecting documents that reasonably appear to be genuine and to relate to the employee presenting them; and
- Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to present particular documents the employer does not require other employees to present.
The Department of Justice has been increasing enforcement efforts to address immigration discrimination, including concerns of document abuse in the I-9 process.
In 2014, California enacted a series of immigration protections. California protects workers against “unfair immigration practices” that are taken in retaliation for exercising rights protected under the California Labor Code. An “unfair immigration related practice” includes the following actions when taken for a retaliatory purpose:
- Requesting more or different documents than are required under federal immigration law, or refusing to honor documents tendered pursuant to federal law that, on their face, reasonably appear to be genuine.
- Using the federal E-Verify system to check the employment authorization status of a person at a time or in a manner not required under federal law or not authorized under any memorandum of understanding governing the use of the federal E-Verify system.
- Threatening to file or the filing of a false police report.
- Threatening to contact or contacting immigration authorities.
A new California law — effective January 1, 2014 — further provides that an employer may not discharge an employee or in any manner discriminate, retaliate or take any adverse action against an employee because the employee updates or attempts to update his or her personal information, unless the changes are directly related to the skill set, qualifications, or knowledge required for the job.
Workers in California are entitled to the protections of the state Labor Code regardless of whether or not they are legally authorized to work in the United States. If you hire unauthorized employees, you must pay them and follow the state labor laws.