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Less is More: How Over-Documenting on I-9s Can Lead to Serious Trouble for Employers

Did you know that requesting or accepting too many documents from a new hire when completing the I-9 may put you at risk of violating federal discrimination laws?

Immigration Reform and Control Act prohibits employers from discrimination when verifying employment authorization and identity.

Regardless of their intention, an employer may be engaging in discriminatory hiring practices by doing any of the below:

1. Requiring the employee to present specific documentation for Section 2;

Example: Hiring personnel asking new hire for two forms of I.D.

2. Accepting and recording multiple documents that exceed the I-9’s requirements;

Example: Hiring personnel asking for and recording permanent resident card (List A) and

social security card (List C)

3. Reverifying a permanent resident’s work authorization (green card holder)

Example: New hire presents permanent resident card set to expire in the coming months.

Hiring professional follows up once card expires to request a new one.

4. Refusing to accept a document because it has a future expiration date (expiring work permit)

Example: New hire presents work permit (employment authorization card) set to expire in

a month. Hiring professional stops the process and terminates the worker because their

work authorization will expire.

The consequences of discrimination in the hiring process may result in a variety of consequences including:

  • Civil penalties and Fines;

  • Recurring government oversight;

  • Mandated training for human resources professionals; and

  • Backpay to the employee(s) affected

Case examples of discrimination:

An example of an employer receiving such consequences is demonstrated in a recent settlement between the Justice Department and Treacy Enterprises, the owner/operator of several Domino’s Pizza franchises. The DOJ determined Tracy Enterprises violated the Immigration and Nationality Act (INA) by requiring a non-U.S. citizen worker to provide more documentation than necessary to demonstrate his work authorization. Under the settlement, the Tracy Enterprises will pay a civil penalty to the U.S., train its HR staff on INA requirements, revise its employment policies, and be subject to departmental monitoring and reporting requirements.

Another example occurred earlier this year when the DOJ determined that Destin Wings LLC dba Hooters of Destin violated the INA by discriminating against a non-U.S. citizen when checking her permission to work in the U.S. Destin Wings refused to accept the employee’s valid documentation proving her permission to work and demanded specific, additional documentation. The settlement required the employer to pay a civil penalty, provide backpay to the worker, train staff on the INA’s anti-discrimination provision, and be subject to departmental monitoring for a period of three years.

Training saves the employer time + money:

The cost of training your HR staff to properly execute an I-9 with new hires is small in comparison to the cost of civil fines associated with discriminatory hiring practices and the inconvenience of being under the government’s microscope.

You can find I-9 and other training here:

Hadley Bybee

Business Immigration Lawyer

Instructor for Corporate Immigration Compliance Institute

NOT LEGAL ADVICE: This article is for educational purposes only, it is not legal advice that is applicable to your situation

The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.


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