The Department of Justice is investigating and fining employers who require specific documentation from employees during the I-9 employment eligibility verification process. DOJ’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) often relies on statistics showing a large proportion of employees presenting specific documentation during the I-9 process to determine whether to pursue an investigation and charges for document abuse against an employer under the anti-discrimination provisions of the Immigration and Nationality Act, Section 274B.
Section 274B prohibits employers from requiring specific documentation for the I-9 verification process. Under the law, employees can present any unexpired documentation establishing identity and authorization to work from the list of acceptable documents. Lawful permanent residents, for example, may present either a permanent resident card (I-551 or “green card”) or a drivers’ license and a Social Security card. By reviewing data entered on the Form I-9 and information captured through E-Verify, OSC can identify employers with a high percentage of lawful permanent residents verified using a permanent resident card from List A of the List of Acceptable Documents. OSC is aggressively targeting employers for document abuse and seeking significant fines. Depending on the size of the employer, OSC can impose civil fines for document abuse amounting to tens of thousands, even well over $100,000.
Employers should review their internal policy and training to ensure that employees are allowed to present any acceptable combination of documents from the Form I-9 List of Acceptable Documents. Employers should contact consult with counsel on ways to mitigate potential scrutiny by OSC for document abuse.