Notable Modifications to Form I-9 Obligations | DCR Workforce Blog

Notable Modifications to Form I-9 Obligations

Form I-9A staffing company was in the dock recently for allegedly discriminating against job applicants when verifying their employment eligibility. They were accused of requiring different documents like Form I-9 and E-verify based on the candidate’s by considering individual’s citizenship status – although they exempted US Citizens from such a requirement. Such an action directly contradicts the Immigration and Nationality Act (INA) which prohibits employers from using discriminatory documentary policies, procedures or requirements based on citizenship status or national origin when initially determining or subsequently re-verifying an employee’s authorization for employment.

All employers know that they are not permitted to check if any applicant is a US Citizen before hiring, firing, recruiting or referring for a fee, unless required by law, regulation, executive order or government contract to do so. Exhibiting a preference for undocumented workers over permanent citizens is also prohibited. Any employment eligibility verification done using an I-9 form must follow an offer to hire – not precede it! Not verifying such credentials is also not an option because employers are prohibited from hiring undocumented workers who are ineligible to work, without the necessary documents.

The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices enforces antidiscrimination provisions. It protects workers from employment discrimination based upon citizenship status and national origin, unfair documentary practices when verifying the employment eligibility of employees, and retaliation. OSC advises employers to base all termination decisions on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of their employees.

Changes to Guidance:

During the last 2 months, the OSC has issued clarifications on the manner and extent to which employers may ascertain a potential candidate’s citizenship status:

  • Employers are advised by the OSC not to ask applicants to furnish information about their citizenship status, as it could form the grounds for unlawful discrimination charges. Instead of asking applicants about their citizenship status during the application process, employers may put in a clause in the job postings, clearly specifying that immigration sponsorship is not being offered. An employer may also inquire if the candidate would be needing immigration sponsorship. When employers ask for documents to establish the applicant’s identity and employment eligibility, the approach must be the same for all potential employees.
  • The OSC has also clarified that it is not the responsibility of a general contractor to re-verify Form I-9, or submit originals of all supporting documentation – which were completed and submitted by a subcontractor at time of hire – under the existing guidelines laid down by the US Citizenship and Immigration Form Services (USCIS). Such verification could result in demanding more or different documentation from a worker, and the worker may no longer have the original documents presented, and lose the opportunity to work; in spite of being eligible to do so. Moreover, the company hiring the general contractor has no legal standing as the worker’s employer, and is in a position to demand any documentation.

This has significant implications for the staffing industry.  Accepted business practice is for a client to require a staffing agency to verify authorization to work in the U.S. prior to assignment commencement.  In most agencies, the worker has been hired by the staffing agency specifically for the client engagement, and employment will end at the completion of this engagement.  In these cases, the worker is a “new employee” of the staffing agency and will need to provide original documentation.  However, in cases where the worker is employed by the agency but “on the bench” until an assignment starts, the agency must maintain the necessary documentation on file and provide it to the client as evidence of worker eligibility.  This is typically the case with workers under an H-1B visa.

Our advice is to introduce an additional layer of protection by requiring every supplier to provide contractual provisions and warranties which enforce its Form I-9 obligations. We also encourage agencies to use E-Verify, a free and easy web-based service that lets participating employers quickly verify the eligibility of their new employees to work in the United States.  By doing so, employers also have the added benefit of using one of the most effective tools available to verify the worker’s identify.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.