Q&A: Don’t ask for more documents than I-9 requires

Question: Can our company demand specific documents we want a new hire to produce in order to verify identity and employment eligibility?

Answer: No. Demanding that new hires show you specific employment verification documents can expose your company to liability for “documentation abuse.” It’s considered documentation abuse under the federal Immigration Reform and Control Act (IRCA) for an employer to require different or additional documents to verify employment eligibility beyond what is specified on the I-9 form itself. Employees are free to provide any valid List A document or alternatively any valid List B plus List C document. The list of acceptable documents is on page 4 of the current I-9 form.

Recently, a staffing company settled a claim with the U.S. Department of Justice for more than $67,000 because its HR person erroneously requested additional documentation of employment eligibility despite a new employee having already provided valid documentation establishing his identity and right to work in the U.S. The worker had presented a foreign passport with a stamp showing his permanent resident status. It should have qualified as a List A document on the Form I-9 List of Acceptable Documents because the third item on that list is a “Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa.” The HR person wasn’t familiar with that item in the list, so told the new hire he would have to bring in a permanent resident card, which he didn’t have. Needless to say, he was very upset because he had proper authorization to work in the U.S.

The U.S. Citizenship and Immigration Services (USCIS) maintains an excellent Handbook for Employers on employment eligibility, which includes color photos showing valid examples of acceptable documents. For more information, check out the following Vigilant Legal Guides: Form I-9: Basic Obligations of Employment Eligibility Verification, Form I-9: Avoiding Documentation Abuse, and At a Glance: Form I-9. For additional guidance, contact your Vigilant Law Group employment attorney.

If you need help with employment issues and you aren't a Vigilant member, contact us to learn how we can help.