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How NOT to Ask for Documents

27th January 2011
By Ann Allott in Immigration Law
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The Immigration and Nationality Act (INA) prohibits employers from asking for more documentation from employees than required.  Hence, the thought process of "if some is good, more is better" can be damaging and result in serious fines and penalties for businesses.

According to the Department of Justict (DOJ), the INA prohibits:

"Unfair documentary practices related to verifying the employment eligibility of employees. Employers may not, on the basis of citizenship status or national origin, request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents or specify certain documents over others. U.S. citizens and all work
authorized immigrants are protected from document abuse."

EXAMPLE:  A prospective employee was rejected for a job when she only had a stamp in her passport showing whe was a lawful permanent resident (LPR).  At that time, she did not have her alien registration receipt card, commonly known as the “green card”.

When asked to complete the Form I-9 Employment Eligibility Verification, she filled out Section 1, checking the box stating she was a LPR and placing her A number on the form. For documentation, she presented her Social Security card and driver's license.

The employer was not satisfied with the 2 documents she presented even though the employer believed they were hers and were genuine.  The employer asked to see her "green card".  The employee responded by stating all she has was the stamp on her passport.

The employer rejected her.

The prospective employee then contacted the Special Counsel for
Immigration-Related Unfair Emplopyment Practices to start a free investigation to determine if she had been the victim of discrimination.

The Special Counsel must investigate the charge and determine whether or not to bring a complaint before an administrative law judge.  If the judge finds an unfair immigration-related employment practice occurred, he/she may order the employer to hire the individual and pay back wages for up to 2 years.  The employer may also be ordered to pay civil penalties and attorney fees.

Employers need to be aware of the possibility of discrimination accusations regarding the Form I-9. Form I-9 compliance is an extremely complex and complicated matter with serious implications and should be discussed with an immigration attorney.

Form I-9, Employment Eligibility Verification

Allott Immigration Law Firm specializes in all aspects of immigration law. Their team of dedicated lawyers assists clients on a worldwide basis with Form I-9 Compliance, Employer Sanctions Law, Visas, Detention & Removal Proceedings, Citizenship & Naturalization and U.S. Passports.

Ann Allott is an expert on Employer Sanctions Law and the Form I-9, Employment Eligibility Verification. She is one of the most respected authorities in the United States on Form I-9 compliance. Ms. Allott has worked with hundreds of employers, assisting large and small businesses with the complex legal issues surrounding the Form I-9.

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