OREGON: Driver cards for illegal immigrants may throw a wrench in your I-9 process

Individuals who cannot provide documentation that they’re authorized to be in this country can now obtain an Oregon Driver’s Card, pursuant to a bill that was recently signed into law (SB 833). Effective January 1, 2014, the Oregon Department of Motor Vehicles will be authorized to issue Driver’s Cards to individuals who cannot provide sufficient documentation to show that they’re legally authorized to be in the United States, a requirement which is otherwise part of the process for obtaining an Oregon Driver’s License.

While on its surface this law does not relate to employment, this new piece of documentation could be presented during the employment authorization process and employers should be aware of its effect. The new Driver’s Card is likely to fall within the Form I-9 “List B” category for documents that establish identity. This means that an employee could present an Oregon Driver’s Card to establish identity, along with a “List C” document to establish work authorization, and the combination of those documents would satisfy the Form I-9 requirements.

Employers may be tempted to assume that an individual who presents an Oregon Driver’s Card to complete the Form I-9 is not legally in the country, and therefore not legally authorized to work here, but that assumption during the hiring process could cause legal problems for employers. While the majority of individuals obtaining Oregon Driver’s Cards may be illegal immigrants, it’s possible that individuals who are authorized to work in the United States may present this form of documentation during the I-9 process. For example, an individual could be using an Oregon Driver’s Card even after they’ve obtained proper authorization to live and work in the United States. Or an individual may have lost their birth certificate or other necessary documentation to obtain a Driver’s License, so obtained a Driver’s Card instead.

Making assumptions about the work authorization of an individual based on the type of identity document they present is not only a bad idea, it also violates the I-9 process if you take employment action based on those assumptions. If an employee presents documentation that on its face appears valid, and it meets the requirements for completing the Form I-9, then you have no choice but to accept those documents. If you want to explore other options for I-9 compliance and satisfying the employment authorization process, such as using E-Verify, contact Vigilant to learn about ongoing employer legal advice and employment law counsel.