State Letter #01-30

Employment Eligibility Requirements

Publication Date: November 21, 2001


FROM: Nguyen Van Hanh, PhD, Director
Office of Refugee Resettlement
Juan Carlos Benitez, Special Counsel
Office of Special Counsel for Immigration-Related Unfair Employment Practices Civil Rights Division, U.S. Department of Justice

SUBJECT: Employment Eligibility Requirements

Purpose of this Letter

The Office of Refugee Resettlement (ORR) funds and administers programs for refugees, asylees, Cuban and Haitian entrants, Amerasians and victims of severe forms of trafficking. In most cases, these special populations have the right to work in the United States. These individuals, and the agencies that serve them, should be aware of employment eligibility requirements in the United States and the actions to take if a work-authorized individual encounters difficulties when applying for or maintaining employment. ORR and the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) at the Department of Justice have prepared this State Letter to provide information on employment eligibility requirements.

This State Letter provides:

1.background information on employment eligibility in the United States; overview of the work of OSC; overview of the I-9 Employment Eligibility Verification Form (Form I-9); and,

4.answers to frequently asked employment eligibility questions from ORR-assisted populations.
Background Information

The Immigration and Nationality Act (INA) prohibits the knowing hire of individuals who are not authorized to work in the United States. The INA, consequently, requires employers to verify the identity and employment eligibility of every employee hired after November 6, 1986. Employers who do not comply may be sanctioned. As part of the employment eligibility verification process, all new hires must complete Section 1 of the INS Form I-9 and present to their employer documentation establishing identity and work eligibility.

Congress recognized that the employment verification requirements and potential employer sanctions might discourage some employers from hiring individuals who look or sound "foreign." Therefore, the INA also contains an anti-discrimination provision that prohibits immigration-related unfair employment practices. Employers who discriminate may be required to pay back wages and civil penalties, and to hire or rehire the employee.

Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC)

OSC enforces the INA's anti-discrimination provision, which prohibits: citizenship status and national origin discrimination with respect to hiring, firing, or referring an individual for a fee, document abuse, and retaliation.

Citizenship Status Discrimination. Citizenship status discrimination occurs when an employer treats individuals differently because of their citizenship or immigration status, or because the individual is perceived as looking or sounding "foreign." For example, an employer who refuses to hire aliens or has more stringent hiring requirements for aliens than for U.S. citizens may be committing citizenship status discrimination. Employers are also prohibited from refusing to hire refugees and asylees because their work authorization contains an expiration date.

National Origin Discrimination. National origin discrimination occurs when an employer treats individuals differently because of their place of birth, country of origin, ancestry, native language, or accent. For national origin discrimination, OSC has jurisdiction over employers with 4 to 14 employees.

Document Abuse. Employers commit document abuse when they request more or different documents than are required to establish a worker's identity and eligibility to work in the United States. Employers also commit document abuse when they reject documents that appear to be reasonably genuine upon their face. For example, employers may not require aliens to present a specific document to establish identity and eligibility to work while allowing citizens the opportunity to present the full range of acceptable documents.

Retaliation. It is also an immigration-related unfair employment practice for an employer to intimidate, threaten, coerce, or retaliate against an individual who intends to or has filed a charge with OSC, or has provided testimony or otherwise assisted OSC in an investigation, proceeding, or hearing.

Individuals who believe they have suffered discrimination may call the OSC toll-free Worker Hotline at 1-800-255-7688. OSC staff members (who have access to interpreters) can help callers and send them a charge form. OSC also can explain to employers how to avoid discriminating against workers. The Employer Hotline is 1-800-255-8155. Agencies also may call either of these numbers with their questions or to request OSC's informational brochures and posters.

The I-9 Employment Eligibility Form

The Immigration and Naturalization Service (INS) developed the Form I-9 for employers to document that they are hiring individuals who are authorized to work in the United States.

Section 1. The employee should complete Section 1 of the I-9 Form. The employee may be assisted by a translator. The employee must attest that he or she is work authorized and enter his or her signature and date where required.

Section 2. Employees are responsible for presenting documents that establish identity and employment eligibility. However, employees have the right to choose which document or combination of documents to present from the lists of acceptable documents on the back of the I-9 Form (see Attachment). Employees may present either one document from List A (which establishes both identity and employment eligibility) or one document from List B (which establishes identity) and one document from List C (which establishes employment eligibility).

The employer is responsible for reviewing the document presented by the employee, and then certifying that the document presented appears to be reasonably genuine and to belong to the employee. The employer may not refuse to accept valid documents or require an employee to present a specific document, such as an INS-issued document, to be hired.

Section 3. In some cases, the employer is responsible for updating and reverifying some employees' work authorization. Generally, these are only those employees who have checked the third box in Section 1 stating that they are an alien authorized to work until a particular date. Employers should not reverify the work authorization of lawful permanent residents, even though their permanent resident (or green) card may contain an expiration date. To reverify work authorization, the employee must present one document from List A or one document from List C. However, just as with the initial hire, the employer may not require more or different documents or require a specific document from the employee.

Frequently Asked Questions

1.Must non-U.S. citizens provide an INS-issued document, such as Form I-688A, to fulfill the Form I-9 document requirements?

No. An individual who is not a U.S. citizen does not have to submit an INS-issued document if he or she can fulfill the Form I-9 requirements with other documents. For example, an asylee with a state driver's license (List B document) and an unrestricted Social Security card (List C document) fulfills the Form I-9 requirements and may not be required to present an INS-issued document. If the employer did require an INS-issued document after the asylee had submitted documents fulfilling the Form I-9 requirements, it would be considered document abuse.

2.What should an individual do if an employer demands an INS employment authorization document but the employee has other documents that fulfill the Form I-9 requirements?

An individual should consider providing the requested document to safeguard his or her employment. An individual may also contact OSC's Worker Hotline at 1-800-255-7688 for assistance.

3.What is the "receipt rule" for refugees?

Although an individual normally must submit a document from List A, or one document from List B and one document from List C, under the "receipt rule" for refugees, a refugee may meet the Form I-9 requirements by presenting to his or her employer the departure portion of the Form I-94, containing a refugee admission stamp. This submission only completes the Form I-9 temporarily. Within 90 days, the refugee must provide the employer with either (1) an unrestricted Social Security card and a List B document or (2) an employment authorization document issued by the INS.

4.Is a Form I-94 with a refugee or asylee stamp considered an "unexpired employment authorization document issued by the Service" (other than those listed under List A) in List C?

Yes. The Form I-94 with a refugee or asylee stamp is considered an "unexpired employment authorization document issued by the Service" (other than those listed under List A) in List C.

5.Does the "receipt rule" for refugees also apply to asylees?

No. This rule applies only to refugees. It does not apply to asylees.

6.Does an employee need to submit the same proof of identity and employment eligibility at reverification as he or she did on the initial Form I-9?

No. An employee may present a document that shows either an extension of his or her initial employment authorization or a new document evidencing work authorization, including an unrestricted Social Security card.

7.Can an employer refuse to hire an individual because the individual's document has an expiration date?

No. Consideration of a future employment authorization expiration date in determining whether an individual is qualified for a particular job could be an unfair immigration-related employment practice.
If you have additional questions regarding the Form I-9, employment eligibility requirements, or immigration-related unfair employment practices, please contact the Office of Special Counsel at 202-616-5594, 1-800-255-8155 or 1-800-362-2735 (TDD).

Current as of: