Complying with the Immigration Reform and Control Act of 1986: A Challenging
Task
October 2006
Employers should not request employment documentation
or ask candidates to complete the I-9 form before their first day of work. Prescreening
potential employees by requiring them to show immigration documentation prior
to hire may lead to discrimination in denying work-authorized individuals a
job due to their nationality or other protected category.
by Paul
J. Siegel, Esq.
Jackson Lewis
LLP
To ensure compliance with the Immigration Reform and Control Act of 1986
(IRCA) I-9 regulations, new employees should not be asked to show specific documents
when completing I-9 employment eligibility verification, regardless of whether
they are or appear to be from a foreign country. This rule applies because the
law requires only that the employer show the list of acceptable documents to
the employee at the time of hire and allow the employee to decide what documentation
from the list to present.
Employers may not determine which documents must be tendered to prove lawful
work status or identity so long as the employee submits acceptable documentation
from the list on the I-9 form; the document or documents appear to be authentic;
and the document or documents relate to the person presenting them. If a worker
produces documents which contradict any statement in the attestation section
of the I-9 form (regarding whether they are a U.S. Citizen, Legal Permanent
Resident, or Alien authorized to work until a specific date), the employer should
point out the inconsistency and ask the employee to correct the error or explain
the discrepancy. A Social Security card may be requested specifically for payroll
purposes, not in the I-9 employment eligibility verification context.
Copies of employment eligibility documentation are not required to be made
by the IRCA. Employers have the option to make and attach copies of this documentation
to the employee's I-9 form, or not to take copies. The key is consistency, i.e., employers should not make copies of
documents only for certain employees. It is generally recommend that copies be made to ensure that there is proof of a good-faith
review of the documents tendered, but care must be taken to ensure that only
those documents the employee is relying on for employment eligibility purposes
are kept with the I-9 form.
This means that if the employee produces a permanent resident card (a.k.a.
"Green Card") for the I-9 form, and a Social Security card for payroll purposes,
only a copy of the Green Card should be attached to the I-9 form. Including
the unnecessary additional document copy with the I-9 is considered unlawful
"over-documentation."
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