What is Document Abuse?
Employers are required by the Immigration Reform and Control Act of 1986 (IRCA) to verify the identity and employment eligibility of their workers. To do this, they must complete an Employment Eligibility Verification Form, also known as a “Form I-9,” within three business days after an employee is hired. This process requires employees to present the employer with any one of many possible combinations of documents that prove that they are authorized to work in the United States. The various types of documents that are acceptable are listed on the Form I-9.[1]
Document abuse occurs when an employer does not permit a worker to use any combination of documents that are legally acceptable but, instead, specifies which documents s/he must use, or requires more documents than are legally required by the Form I-9. Therefore, if an employer refuses to accept legally acceptable documents that appear genuine on their face from a work-authorized immigrant worker, the employer has committed document abuse.
Has my employer committed document abuse?
Document abuse can occur against: (1) newly-hired workers and (2) currently employed workers who have already completed the I-9 process.
Document Abuse at the Time of Hire:
Your employer may have committed document abuse at the time of hire if –
- your employer has requested more documents than the I-9 form requires.
- your employer has requested different documents than the I-9 form permits.
- your employer has refused to honor legally acceptable documents presented which, on their face, appear to be genuine.
Here are some examples of document abuse at the time of hire:
- A prospective employer specifically demands to see a worker’s U.S. passport or Social Security card.
- A prospective employer asks for an Employment Authorization Document although the worker has already shown a state identification card and an “unrestricted” Social Security card.
- A prospective employer refuses to accept an Employment Authorization Document because it has a future expiration date.
Document Abuse Against Current Employees:
Document abuse also may occur when an employer demands that you present documents showing your ability to work in the United States, even after you have been hired and already successfully completed the I-9 process.
There are only a limited number of circumstances under which it is clear an employer can lawfully “re-verify” a worker’s employment eligibility – that is, require the worker to present I-9 documents again after s/he has already done so. These situations include the following: when an employment authorization document that has been presented to complete the Form I-9 has expired or is about to expire; when the employer has been informed by Immigration and Customs Enforcement (ICE) that there are problems with its workers’ documents; or when the employer has “constructive knowledge” that the worker is not work authorized.
“Constructive knowledge,” as interpreted by the courts, is a high standard indicating that the employer must have clear evidence that someone is in fact undocumented, such as notice from a federal immigration agency. Mere suspicion that a worker is unauthorized to work is not enough. IMPORTANT NOTE: The receipt of a Social Security Administration “no-match” letter does not by itself constitute “constructive knowledge.”
In addition, the IRCA regulations make clear that employers are not required to re-verify an employee’s employment eligibility in many other specified situations, such as when she returns to work from an approved leave, is reinstated to her job after an unlawful suspension or termination, or in the course of a labor dispute. Should an employer attempt to re-verify in these situations, it may be possible to draw an inference of retaliatory or other improper employer motivation.
Here are some examples of document abuse against current employees:
- An employer asks to re-verify the work documents of a worker who had presented a “green card” at the time of hire.
- An employer demands to see a worker’s renewed green card because the license that the worker originally used for the I-9 has expired.
- An employer refuses to accept a worker’s expired Employment Authorization Document, even when she shows the employer an official press release from U.S. Citizenship and Immigration Services stating that all such Employment Authorization Documents have been automatically extended until the following year.
- An employer re-verifies only workers of a specific ethnicity.
- An employer re-verifies the entire workforce during a labor organizing campaign because of the attempt to form a union.
What should I do if my employer has committed document abuse?
The anti-discrimination provisions of IRCA forbid unfair immigration-related employment practices and establish procedures to enforce these prohibitions.
If your employer has committed document abuse, you may file a charge of discrimination with the U.S. Department of Justice’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) within 180 days of the act of discrimination. OSC may investigate claims for up to 210 days after receipt of a charge. If OSC finds there is reasonable cause to believe that immigration-related unfair employment practices may have occurred, OSC may file an administrative complaint against the employer with the Office of the Chief Administrative Hearing Officer (OCAHO). An OCAHO administrative law judge (ALJ) hears the complaint. OSC may also initiate independent investigations to investigate whether the company has engaged in a pattern or practice of discrimination.
There are several remedies that may result from an OSC investigation. These include back pay awards, reinstatement or hiring, imposition of injunctive relief, and civil penalties against violating employers.
For more information about OSC, including obtaining charge forms in English, Spanish, Chinese, and Vietnamese, visit https://www.justice.gov/crt/filing-charge, call OSC’s toll free Worker Hotline at 1-800-255-7688 (voice) or 1-800-237-2515 (TDD), or write to OSC at 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530.
Disclaimer
This Fact Sheet is intended to provide accurate, general information regarding legal rights relating to employment in California. Yet because laws and legal procedures are subject to frequent change and differing interpretations, Legal Aid at Work cannot ensure the information in this Fact Sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation.