Office Of Special Counsel For Immigration Related Unfair Employment Practices

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Verifying the Legal Status of Your Employees
Without Committing Unlawful Discrimination

Did you know that your business must review documentation from each new hire to verify that he or she is eligible to work in the United States? This obligation applies even to small businesses that employ one employee!

Did you also know that employers that verify the employment eligibility of employees in a discriminatory manner are subject to discrimination complaints, civil penalties, back pay awards, and attorney's fees?

Since 1986, all businesses must verify the employment eligibility of new employees. Although a simple process, some employers make unintentional mistakes, and other perform the process in a discriminatory manner. This article will give you helpful real-life tips so that you can hire those workers who will best help your business grow.

When you hire a new employee, you must verify his or her employment eligibility. This is done by completing an Employment Eligibility Form (Form I-9). You can download this form from http://www.usdoj.gov/crt/osc/htm/facts.htm. On the first day of work, the employee must complete part 1 of the form, in which he or she certifies employment eligibility by checking whether he or she is a U.S. citizen, lawful permanent resident, or an alien otherwise entitled to work in the United States. Although the employee should complete part 1, it is your responsibility to ensure that part 1 is completed before the end of the employee's first work day.

On or before the third day of work, the employee must present documentation evidencing his or her right to work in the United States. The employee must present either one document from list A of the Form I-9 (establishing both identity and employment eligibility), or one document from list B (establishing identity) and one document from list C (establishing employment eligibility). The employer must then certify that the documentation appears genuine on its face, and reasonably relates to the person presenting it. It's that simple!

Failure to complete the Form I-9, or knowingly hiring undocumented workers, violates the country's immigration laws, and can lead to prosecution and civil penalties. However, you must take care not to discriminate against your new employee by limiting the choice of acceptable documents, rejecting documents that reasonably appear to be genuine, or by treating individuals differently based upon their national origin or citizenship/immigration status.

Here are some simple tips to help guide you through the process.

  • Show your new employees the list of acceptable documents on the back of the Form I-9.
  • Give your employee the choice of what documentation to present.
  • Accept documents that reasonably appear to be genuine and to relate to the employee.
  • You are neither required nor expected to be a document expert.

Treat all employees equally; do not limit the choice of acceptable documents for non-citizens, or individuals who may appear or sound "foreign." Non-citizens may present a driver's license and unrestricted Social Security card to establish their employment eligibility.

Do not institute a U.S. citizens-only hiring policy, or U.S. citizens and green card (or lawful permanent resident) hiring policy. There are many types of immigrants who are legally eligible to work in the United States, including refugees and asylees.

For more information about avoiding discriminatory practices, call the Office of Special Counsel Employer Hotline at 1-800-255-8155 or visit http://www.usdoj.gov/crt/osc/index.html. For more information about the lists of acceptable documents, visit http://www.uscis.gov/files/nativedocuments/m-274.pdf

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Updated August 6, 2015

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