In this increased immigration enforcement climate, employers should comply with immigration law in good faith while ensuring their good intentions do not inadvertently lead to discrimination. The Immigration and Nationality Act prohibits discrimination based on immigration status and national origin, but it also prohibits unfair documentary hiring practices against all employment-authorized individuals, which are frequent yet inadvertent violations. To fulfill the dual goals of compliance and non-discrimination, employers should follow the four R’s when completing Form I-9: Respect applicants equally and Review, Research, and Record every applicant’s work authorization documents.
To respect applicants equally, employers must request work authorization documentation from each and every applicant, regardless of the applicant’s presumed citizenship or national origin. When reviewing documents, the employer should know that U.S. Citizenship and Immigration Services (USCIS) issues a variety of documents – not just one – as evidence of work authorization. For example, an asylee recently sought our assistance applying for work authorization because the employer demanded a current “employment authorization document” (EAD), a card so labeled that contains the foreign national’s photograph and biographical information. The employer informed the asylee that without an EAD, his employment would be terminated. Unfortunately, the employer did not know asylees are authorized to work in the United States by virtue of their immigration status and are not required to have a valid EAD. As such, asylees may lawfully prove work eligibility via a valid I-94 document or an unrestricted Social Security card as proof of their asylee status. When reviewing documents, employers also should recognize the existence of many types of work authorized immigration statuses. So if a foreign national is not a legal permanent resident or does not have a “green card”, this does not mean s/he is unauthorized to work in the United States as one may hold a variety of other authorized work statuses, such as temporary protected status (TPS), numerous types of non-immigrant visas or humanitarian parole, to name but a few.
It is unrealistic to expect an employer to be instantly aware of all the different types of documents evidencing valid work authorization and which document suffices for each specific immigration status. However, with some research, this particular employer would have known that asylees do not require a valid EAD to work. A quick and accessible resource for such research is the USCIS website (www.uscis.gov) and the “M-274 Handbook for Employers” found on the website. In the case of the asylee whose employer requested an EAD, one simple phone call, along with excerpts from the M-274 handbook, educated the employer and saved the asylee’s job. Finally, as occurred in the case of our asylee, with the proper and sufficient documentation in hand, the employer can then record the information on Form I-9 and comply with the law.
In conclusion, employers should not demand additional documents from applicants than those required by law not only because this practice may constitute illegal discrimination resulting in monetary civil penalties and corrective measures, but also because this practice creates an unnecessary economic burden on the applicants. To wit, applying for an EAD costs $340, and such a fee decreases the expendable income of the worker, and consequently weakens the economy by removing consumer dollars from the market.
Michelle Mendez is the DLA Piper Equal Justice Works Fellow at Catholic Charities Immigration Legal Service of the Archdiocese of Washington, D.C. She is also a Maryland Immigrant Rights Coalition Board Member.