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Bryan E. Kuhn
Counselor at Law, P.C.
Business & Employment Law Attorney

Can the I-9 process be discriminatory?

Most employers in the U.S. have an affirmative obligation to verify both the identity and work eligibility of everyone they hire. This requires completing and retaining an I-9, Employment Eligibility Verification. While the I-9 process should distinguish between legally authorized workers and those who lack legal work eligibility, employers cannot use it to discriminate.

The Immigration Reform and Control Act of 1986, the federal law that imposes the I-9 requirement, prohibits discrimination in four key areas.

1. Document abuse

To verify identity and work eligibility, employers must review documents from workers. Employers may not, however, request different or additional documents beyond those on the List of Acceptable Documents that accompany the I-9’s instructions.

2. Citizenship or immigration status

When verifying employment eligibility, employers may not consider citizenship or immigration status. Choosing to hire only U.S. citizens, for example, typically violates federal law. Employers also usually cannot use a future expiration of immigration status to make hiring, firing or recruiting decisions.

3. National origin discrimination

Similarly, it is a violation of the IRCA to take adverse employment action based on someone’s national origin. National origin discrimination involves different treatment due to someone’s actual or perceived place of birth or ancestry.

4. Retaliation

Employees and applicants have a legal right to object to an employer’s misuse of the I-9. It is unlawful for employers to retaliate, harass or intimidate workers who assert their legal rights under the IRCA.

Ultimately, to avoid legal action from the U.S. Department of Justice, employers must follow the law carefully when completing I-9s for their new workers.

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