Because of the Immigration Reform and Control Act of 1986, most employers in the U.S. have a legal obligation to verify both the identity and work eligibility of their employees. They do so by completing and retaining form I-9, Employment Eligibility Verification, for all new hires.
The I-9 has specific instructions employers must follow to avoid discriminating against workers based on their race, national origin or citizenship status. Regrettably, employers may either intentionally or inadvertently use the I-9 process to discriminate against employees.
Asking for specific documents
Employees have flexibility when choosing the documents they wish to present for employment eligibility verification. Provided a new hire shows one document from List A or a combination of acceptable documents from List B and List C, employers usually may not ask for different or specific documents.
Reverifying employment eligibility
With employees who have temporary work authorization, such as an H-1B visa, employers must reverify work eligibility when the temporary authorization expires. If an employee has permanent work authorization, like a U.S. citizen or legal permanent resident, the employer typically may not reverify employment eligibility, however.
Using E-Verify selectively
Some employers partner with the Social Security Administration and Department of Homeland Security to check employment eligibility through an online database. These employers must carefully follow E-Verify’s memorandum of understanding. If they fail to do so or use E-Verify selectively, they may be acting discriminatorily.
Individuals who have the legal authorization to work in the U.S. should not have to face harassment or discrimination from their employers. Ultimately, those who may be victims of discrimination during the I-9 process may have to act quickly both to assert their legal rights and to save their jobs.