The Immigration and Nationality Act (INA) prohibits employers from treating employees differently during the I-9 process based on national origin or citizenship status. One way for employers to avoid discrimination is when the employee first completes the I-9 form. Employers should not request particular documents to verify identity and employment authorization and should let all employees choose which document(s) to present from the lists of acceptable documents.

Discrimination can also occur in other ways during the I-9 process. Hoover, Inc., a vacuum cleaner manufacturer, allegedly engaged in a pattern and practice of employment discrimination by requiring lawful permanent residents to produce a new green card when the green card they first presented for the I-9 expired. The INA provides permanent residents the same right to continued employment that U.S. citizens have without presenting new documentation. Since U.S. citizen employees were not asked to present new documents, the Justice Department determined that Hoover treated permanent residents differently during the I-9 process. The Justice Department reached a settlement with Hoover in November 2010, including payment of $10,200 in civil penalties.

Employers should not re-verify the employment authorization for a lawful permanent resident whose green card has expired after the employee is hired. Our firm is actively involved in assisting employers in the area of employee verification. Employers should contact us if they are interested in improving their verification procedures, and/or conducting an audit to determine if there is any current liability.