Actually the I-9 doesn’t require proof of US citizenship. Rather it requires (or is supposed to) proof of identity and of “legal eligibility” to work in the US.
Just this week I on-boarded a new hire from Australia. He is a transfer (or what is called a secondment) from one of our “sister companies” in Australia (my company is headquartered in the UK and has plants and offices all around the world so these types of arrangements are not unusual especially for upper management types and executives). He has a US “L” Visa - Intracompany Transferee - To work at a branch, parent, affiliate, or subsidiary of the current employer in a managerial or executive capacity, or in a position requiring specialized knowledge. and his US work authorization it is good for up to 3 years. For his I-9, he provided his Australian Passport (and hey, it looked legit to me) and an I-94 form as in # 5 of the list of acceptable 1-9 documents. FWIW he does not yet have a SSN but provided me with a receipt of having applied for one so for now he is pay-rolled in a SSN-Applied For status and hopefully he gets his SSN soon, before the end of the year, before I have to issue his W-2 – and yes he will be subject to US and AUS income taxes. FWIW he is considered a non-immigrant alien and at least for the time being and probably will not be, is not applying for permanent US residency or for US citizenship but is, up until expiration of his Visa, unless it is extended, he is perfectly legally authorized to work in the US.
Okay, was the fine because they selectively chose who to get I-9 from? Should have gotten them from all to avoid charge of discrimination. Besides, the law says all. That they chose only those they thought might be illegal, suggestions discrimation. Shame on them. Any lawyers or fellow company owners that read this differently?
Not an attorney but I have worked in PR/HR for well over 25 years (and never even once stayed at a Holiday Inn Express ; ) ).
From another article it would seem this company asked for documentation from suspected non-citizen applicants on their immigration status at the time of their applying for a job. That is not allowed.
A Nebraska meatpacking company that authorities said illegally required foreign-born job applicants to show proof of their immigration status settled the case Monday with the U.S. Department of Justice. Nebraska Beef Ltd. did not ask similarly qualified U.S. citizens to provide the same documents while applying for the same jobs at its Omaha plant, the Justice Department said.
While all companies are required to verify that their employees are authorized to work in the U.S., asking workers to provide proof of immigration status is a violation of the Immigration and Nationality Act, a federal law that prohibits employers from making documentary demands based on citizenship or national origin, officials said.
But both articles seem to confuse applicants with employees – a real pet peeve of mine ; (
But it is (right or wrong) illegal for a prospective employer to ask any job applicant for their citizenship or immigration status during the application process just as it is illegal (right or wrong) to ask a job applicant a lot of things now days.
The I-9 which is required of all employers, is only to be completed after a job offer is made and accepted and most typically on their 1st day of work and the I-9 documentation has to be presented within 3 days of their first day of work, NOT as part of the application process.
The same BTW with e-Verify – it can only be used within 3 days of the date of hire, not before hire as a pre-employment/applicant screening tool. Failure of the newly hired employee to complete the I-9 or provide the required documentation or pass e-Verify if required (and not all employers are required to use e-Verify – all federal contractors and subcontracts are required to us e-Verify and a few states have made it mandatory), is legal grounds for the employer to terminate them (although there is a process for the employee to contest a failure to pass e-Verify and the employer has to keep them employed during this process) however even if they don’t complete the I-9 or provide the documentation, the employee still has to be paid for their time worked and all taxes withheld up until their termination, even if that means reporting their earnings and taxes withheld as under the SSN 000-00-0000.
And as others mentioned, an employer cannot require additional documentation over and above that required on the I-9. That is specifically not permitted – see the first section of the I-9 instructions.
http://www.uscis.gov/sites/default/files/files/form/i-9.pdf
You are also correct that the employer cannot selectively choose who has to complete an I-9 – ALL new hires, regardless of their US citizenship or presumed citizenship or immigration status are to complete the I-9 and provide the required original documentation (not just a photocopy of), nor can the employer choose what documents the new hire has to use except what documents are listed on the I-9 or ask for any additional citizenship or immigration status documentation as a condition of employment.
Yes it is the employee who chooses what I-9 documents to present to the employer as proof of identity and proof of legal eligibility to work in the US – either 1 document from List A or 1 each from List B and C. (see last page of the I-9).
FWIW - one big issue I see and have always had with the whole I-9 process is that it puts the onus on the employer (or PR or HR and often underpaid clerk) to be an expert in document forensics as far as knowing if a document is legit or fake.
The I-9 instructions to the employer say that the employer is to “physically examine each original document the employee presents to determine if it “reasonably” appears to be genuine and to relate to the person presenting it”. “Reasonably” is the key word.
There are a lot of acceptable documents on the I-9 and while I can certainly see if something like the name on the document doesn’t match the name of the employee on their application or doesn’t match their other documentation (or in our case as we do – post offer, pre-employment background checks) or if the document has been obviously physically altered (white-out used or it is written in crayon?) but other than that, I cannot possibly be an expert in determining the absolute authenticity of the documentation. While there are on-line resources: DHS and INS, etc. that give samples of various documents, that still doesn’t make me an expert especially with some of the more uncommon documents or in looking at an “original or certified copy of a birth certificate issued by a State, county, municipal authority or territory..…or something like a Native American Tribal Document – like here in Central PA, I see those all the time / s .
And as for e-Verify, we use it for all new hires at the company where I presently work and overall I think it is a good tool but FWIW, all e-verify does is use the Employment Eligibility Verification Form I-9 to compare records with the Department of Homeland Security to confirm a potential employee's identity and legal eligibility to work in the U.S. (and isn’t it comforting …or not… that the DHS has a big database of US citizen’s SSN’s and names used, addresses and information from their state driver’s licenses and birth certificates…)
I would also add that if the new hire has stolen or illegally obtained someone’s identity and has convincingly forged documents that match the real persons’ name and records, then they may and can sometimes pass e-Verify and probably also my I-9 review. I don’t know the % of false positives on e-Verify but various sources claim up to 0.7% or more. Conversely, someone who is a victim of identity theft could end up not passing e-Verify if the identity thief has used their name and SSN and other identifying information to apply for a replacement SS card and then put in a name change, fraudulently gotten a driver’s license with a name and address change, fraudulently apply for a US passport, etc.
FWIW, I had a friend who was in the military and then after 25 years of service in the Navy, retired from active duty and went to work for the NSA and ended up, right after moving to MD, on a DHS “No-Fly List” and also couldn’t get his MD drivers’ license because his identity was questioned and whoever stole his identity or sold it to, had a rung up a long list of motor vehicle violations in several states and at least one DWI in a very short amount of time. And my friend had a very Anglo-Saxon name BTW. He thinks his identity was stolen when he sold his car in CA right before he moved to MD and it took him several months to get it all straighten out. He did however pass his NSA background check – go figure. LOL
I understand the sentiment, but I have a real problem with needing PERMISSION from the govt to work; let alone requiring biz. to do the job OF govt (IE: ‘legality’)
About two years or so ago, we hired a guy in his late 50’s as a machine operator. He’d worked for the same local company for over 30 years until they went out of business and the poor guy had been unemployed for over a year before we hired him and he was very happy to finally be back to work.
On his first day of work the HR admin and I were going over and helping him fill out all the various paper work that we and the Gov require, including the Form I-9 documentation. I could see he was overwhelmed and getting stressed out over the whole process.
FWIW, when he got his first and only job up till then, 30 years ago, he probably didn’t have to fill out sign much of anything in terms of forms or provide any documentation to prove he was who he said he was. Where he worked for 30 years for a small, local, family owned company, everyone knew everyone; they were neighbors and friends, their wives and kids were all friends and most attended the same church.
He had with him is PA drivers’ license (one of the list B I-9 documents) but didn’t have anything from List C; didn’t have his original SS card – had no idea where it was, had never needed to show it to anyone before, he knew is SS number but didn’t have his actual card anymore; and he didn’t have a certified copy of a birth certificate, wasn’t sure he’d ever had one; he did bring his baptismal record from his Mennonite church from a few miles away where he’d be baptized, but that is not an acceptable List C document according to the DHS.
I asked him if he had a US passport as that would be a List A document and would be all that would be required to satisfy the I-9 and he laughed and said, “A passport? Heck darling, I’ve rarely ever had any need to leave Lancaster County, any much more than 50 miles from the house where I was born and only was outside of PA once in my entire lifetime - to Niagara Falls New York on my honeymoon in 1975 with my beautiful late wife (God Bless her) and we didn’t even set foot on the Canada side. Why would I ever need a passport?”
So now he and I were between a rock and a hard place. Legally, unless he could come up with a SS card or a certified birth certificate within 3 days, we’d have to terminate his employment.
So I called his manager (also a life-long local guy and a really good guy) and I explained the situation to him and said, “This is what I propose. I’m going to help him go to the local SS office to get his replacement SS card, even if I have to go with him myself, but we are going to advance him a few hours his PTO so he can go first thing tomorrow and get paid for his time – OK?” And his manager agreed to make an exception as we both had confidence that the guy would be a good and reliable worker (and we were right). I gave the guy the form that I printed from the SS website and went over it with him and gave him directions to the closest SS office and offered to go with him but he ended up going himself and came back the next day with proof from the SS office that he was being issued a replacement card and yes, SS accepted his baptismal record as proof of his citizenship. I ran him through e-Verify and he passed and while technically, I didn’t view his actual SS card until several weeks later when he brought in his replacement card, I signed his I-9 form, verifying that I had within the required 3 days after his first day of work.
I guess that makes me a “criminal”. And also proves that not everyone who works in the HR department is Catbert – the Evil HR Director. ; )
