Employers are required by federal immigration law to verify their employees’ eligibility to work in the United States. The U.S. Department of Justice (DOJ) warned employers late last year, however, that employers should be careful when investigating employees’ proof of eligibility. Federal law only requires employers to review certain documents to determine whether they appear facially valid. Further investigation could expose employers to liability, also under federal immigration law, for discrimination based on immigration status or national origin. New York and New Jersey immigrants and employers alike should be aware of these laws and how they impact their rights and obligations.
The government has promulgated a form for employers to use with all employees and new hires called Form I-9, Employment Eligibility Verification. Employees must submit one or two documents to establish identity and work eligibility. A U.S. passport, green card, or employment authorization card, known as “List A Documents,” would demonstrate both elements. A driver’s license or other form of identification, known as “List B Documents,” would be acceptable along with a “List C Document” like a Social Security card or birth certificate. Employers must retain I-9 forms in their records for three years after the employee’s hire date or one year after the termination date, whichever is later.
Federal immigration law prohibits employers from knowingly hiring or continuing to employ immigrant workers without work authorization under 8 U.S.C. § 1324a. Violations of these provisions can results in civil fines, criminal fines, or even imprisonment. The law also imposes monetary penalties for failing to retain I-9 records. The law also, however, prohibits employers from discriminating against employees based on national origin, citizenship status, or other legally-protected categories in 8 U.S.C. § 1324b. Problems may arise when an employer investigates an employee’s work authorization beyond the basic Form I-9 review.