Avoiding Discrimination in Your Form I-9 Process

Verifying a Form I-9 for employment eligibility is a standard onboarding process in every business across the United States. Virtually all employers must complete these documents with their new employees and keep them on file for potential future government audits. Many companies focus on the finer details of compliance, such as how to securely complete and store the form. However, discrimination is a considerable risk employers must confront head-on when developing this process.

Because the I-9 process involves personal information about an applicant’s potential immigration status, some individuals may make decisions that don’t align with the law. These unfair practices can result from discrimination based on events or information during the I-9 process.

The USCIS strongly cautions employers in its Handbook for Employers to create guidelines for preventing discrimination. Here, we’ll explore what the United States Citizenship and Immigration Services (USCIS) defines as unfair and explore how you can develop a better process.

When Might Discrimination Occur?

The USCIS explains that federal law prohibits discrimination at several points during the employment process. You may not discriminate when hiring a new employee or rely on discriminatory behavior as the basis for terminating an individual’s employment. More to the point of our analysis, the law also prohibits discrimination when verifying the Form I-9 and using E-Verify. The potential for discrimination exists at all these stages. Let’s consider how improper practices might seep into the verification procedure.

What Are the Possible Types of Discrimination in the I-9 Process?

The USCIS outlines four specific methods employers could introduce discriminatory behavior into the Form I-9 employment eligibility verification process. Let’s review each to understand what to avoid.

Unfair Document Practices

When verifying someone’s eligibility to work, employers must examine documents for the I-9 form provided by the individual. Employees have the sole discretion to choose which acceptable List A and List B documents they provide. However, some employers discriminate at this stage by exerting more control over this process than the law allows. Any of the following acts are illegal discrimination:

• Refusing to accept documents even when they reasonably appear to be a genuine issue and adequately associated with the individual.
• Demanding employees present a specific document from one of the lists, such as a Permanent Resident Card.
• Requiring employees to submit more documents than the minimum required by the law.

Employers must not interfere with the document process. Your only role is to examine the documents and confirm they are the applicant’s genuine papers.

Discriminating on Citizenship Status

Employers of four or more people must treat everyone equally during this process regardless of their citizenship or immigration status. You cannot refuse to certify an I-9 or hire an individual because of their particular citizenship status. For example, an employer cannot decide to refuse to hire an individual because they are a refugee or an asylee. In rare cases, some laws or government regulations may allow employers to consider these factors in sensitive roles. In general, citizenship status isn’t something you can use to make decisions.

Discriminating on National Origin

You may not discriminate against an individual because of their specific national origin, including place of birth, ancestry, ethnicity, and even the individual’s accent. The USCIS notes that employers can’t change their behavior simply because an individual sounds foreign.

Retaliating Against Employees

Sometimes, employees may complain about an employer’s behavior during verification. Discrimination can include retaliation against the employee for specific actions. For example, they may formally complain about discrimination, participate in an investigation, or assert their or another’s rights to fair hiring practices.

Steps to Take to Prevent I-9 Discrimination

How can you ensure the I-9 verification process is smooth, seamless, and fair?

First, review the USCIS guidelines for anti-discrimination practices. The Handbook for Employers contains several detailed sections with more information and examples. Familiarize yourself with these guidelines and begin to internalize them.

Next, incorporate these provisions into your policies. Anyone engaging in the process should have a clear directive to avoid discrimination, and staff must know what it entails. That makes the third step one of the most important: training.

Anyone who will verify a Form I-9 or work with new hires during this process should understand the rules. For example, a representative completing the form on behalf of the business must know the guidelines for acceptable documents. They must not pressure or coerce applicants to submit specific documents or more than what the law requires.

Finally, a broader workplace anti-discrimination policy and further training can be crucial. Teams must understand how to spot citizenship or national origin discrimination and help stop it. The alternative is the risk of an investigation into the company’s practices.

The Possible Penalties for Violating the Law

Employees who believe they experienced discrimination can complain to the Office of Immigrant and Employee Rights (IER). If the IER investigation determines you engaged in unlawful conduct, they may file suit against your company. The employee who experienced discrimination may also file their own suit. That means your business may:

• Have to hire or reinstate an individual you denied.
• Pay back-pay to the person affected.
• Owe hefty civil penalties due to a settlement or a judgment at trial.
• Pay attorneys fees to the individual if they file suit and win.
• Pay compensatory damages.

As we can see, there is the potential for severe financial trouble due to discrimination.

Review Your Workflow for Compliance Today

The I-9 process should be a straightforward event you can take care of with your new employees. It should not be an opportunity to discriminate against someone who completed your hiring and screening process. With the potential for hefty penalties, companies can’t afford to be lax in this area.

Review your policy. Do you have language or guidance in it to help HR or authorized representatives understand how to avoid discrimination? Train the relevant teams to analyze and complete a Form I-9 correctly and impartially. Doing so levels the playing field and ensures you can remain compliant now and into the future.