OSC or EEOC?

Originally Published in June, 2009
Because both EEOC (Equal Employment Opportunity Commission) and OSC (Office of Special Counsel for Immigration Related Unfair Employment Practices) deal with employment discrimination against immigrants, immigrants who face discrimination need to decide which agency to file charges with. There is a reciprical filing agreement between the two agencies, so that when one agency believes the other is more appropriate for a specific problem, they to do referrals to the other agency when appropriate. However, workers may not file charges with both agencies for the same offense. To decide which agency to file with, consider the following:

OSC is able to assist workers who work for companies with four or more employees. With National Origin Discrimination the OSC only investigates charges against employers with 4 to 14 employees.

EEOC is able to assist workers whose employers have 15 or more employees.

Cases where the employer makes reference to the worker's status or documentation when firing or refusing to hire them, should be referred to OSC.

Cases where an employer, with 15 or more employees, makes reference to the worker's language, accent, dress, religion, or race should be referred to EEOC.

OSC can deal with discrimination that has happened within the past 180 days.

In Pennsylvania, EEOC can deal with discrimination that has happened within the past 300 days.

Financial costs for employers who are found guilty of charges by OSC can include lost wages, attorney's fees, and civil fines of $250 and $2,000 (for a first offense).

Financial costs for employers who are found guilty of charges by EEOC can include lost wages, attorney's fees, punitive damages, and mental anguish and inconvenience. These can add up to significantly more than the costs of OSC penalties.

Private attorneys can also be hired for discrimination charges, but they are not necessary, and it is required that charges first be filed with EEOC or OSC, and a "right to sue" letter be obtained.

Who do you call for which labor discrimination complaint?

(Originally written in June, 2009)
The Office of Special Counsel is one of a number of federal and state agencies that workers can turn to when they are facing employment discrimination. Each of these agencies assist with violations of specific laws. The challenge is to find which agency to go to for which type of complaint.

In this article we will discuss several laws related to employment discrimination, and provide contact information and procedures for the agencies that deal with violations of these laws.

The Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) OSC enforces discrimination provisions of the Immigration and Naturalization Act (INA), including:

• Citizenship status discrimination
• National origin discrimination (for companies with 4-14 employees)
• Document abuse
• Intimidation/ Retaliation against employees making a charge.

When facing one of these practices, workers have up to 180 days to file a complaint with the OSC. To file charges contact OSC at 1-800-255-7688, or go to the website below to fill out a charge form in English, Spanish, Vietnamese, or Chinese:

http://www.usdoj.gov/crt/osc/htm/charge.htm

You can also contact the Newcomer Equal Employment Rights (NEER) at 215-747-7500 Ext. 257.

The Equal Employment Opportunity Commission (EEOC) The EEOC deals with complaints about several types of employment discrimination when committed by employers with 15 or more workers. They enforce the following laws.

Title VII of the Civil Rights Act of 1964: Title VII prohibits discrimination in employment based on any of the following protected classes: Race or Color, National Origin, Religion, and Sex (including based on pregnancy). This includes discrimination in hiring, firing, compensation & benefits, and promotion. It also prohibits harassment and retaliation.

Age Discrimination in Employment Act (ADEA): ADEA prohibits discrimination based on age against workers over the age of 40. The Americans with Disabilities Act of 1990 (ADA): ADA prohibits discrimination against the disabled in many contexts including employment, housing, government services, and telecommunication, but the EEOC only deals with those related to employment. ADA not only prohibits discrimination but requires that employers make reasonable accommodations when requested by qualified workers with disabilities.

The Equal Pay Act (EPA): EPA protects male and female workers against wage discrimination based on sex.

In Pennsylvania, workers have up to 300 days to file charges with the EEOC. Charges can be filed by appearing in person or by mailing in a charge form to the closer of the two offices. Cases of clients who appear in person will typically be expedited. Clients who mail in charges may have to wait a month or more before they receive any response.:

Philadelphia District EEOC Office
801 Market Street, Suite 1300
Philadelphia, PA 19107-3127

Pittsburgh Area EEOC Office
William S. Moorhead Federal Building,Suite 1112
1000 Liberty Ave.
Pittsburgh, PA 15222-4004).

For more information about filing a charge call 1-800-669-4000 or click on the web link below:


Pennsylvania Human Relations Commission: The PHRC handles a wide variety of discrimination complaints which are covered by state laws. When filing charges with the EEOC, you can choose to have a copy of the charge be sent to the PHRC, so that if there are relevant state laws they can also be investigated. For an explanation of the state laws covered by PHRC go to:

http://www.eeoc.gov/facts/howtofil.html

PHRC charges can be sent to the following offices:

Harrisburg Regional OfficeRiverfront Office Center
1101-1125 S. Front Street, 5th Floor
Harrisburg, PA 17104-2515
Phone: (717) 787-9784
Philadelphia Regional Office110 North 8th Street, Suite 501Philadelphia, PA 19107Phone: (215) 560-2496
Pittsburgh Regional Office11th Floor State Office Building300 Liberty Avenue, Pittsburgh, PA 15222Phone: (412) 565-5395

The Veterans Employment and Training Service (VETS): VETS enforces the Uniformed Services Employment and Reemployment Rights Act (USERRA) which:
prohibits discrimination against veterans and members of the military
requires that employers grant up to five years of leave to workers performing National Guard and other military service
requires that workers be reinstated in the previous jobs without loss of benefits
prohibits employers from firing service members without cause for up to one year
requires that disabled veterans be given preference for federal jobs for which they are qualified
More information can be found at:

http://www.dol.gov/vets/compassist/main.htm

In Pennsylvania, charges can be filed by contacting: Veterans' Employment and Training Service U.S. Department of Labor The Curtis VETS/770 West170 S. Independence Mall Philadelphia, Pennsylvania 19106-3310Phone: (215) 861-5390 FAX: (215) 861-5389

Not on the back?

When legal workers, because of their particular circumstances, do not have any of the documents listed on the back of the I-9, there may still be other options. The I-9 Handbook lists these options. As advocates for immigrants or workers, you should know about the following.

• If documents have been lost or stolen a worker may present a receipt from the agency that issues the document that they have applied for replacement documents. They must then show the actual document within 90 days. (See p. 7)


• If a refugee has a job offer before they have received their State ID, EAD, or Social Security Card, they may show their I-94 with a refugee admission stamp. They must then show the EAD card or a List B document and a Social Security Card within 90 days (See p. 8).


• An asylee may use an I-94 stamped "asylum" "granted indefinitely," as a List C document.
  Individuals with Temporary Protective Status, may show an expired EAD card when the status has been automatically extended. It is recommended that they also present the applicable Federal Register Notice extending TPS for their country. (See p. 8)

These are just a few of the options listed in the handbook that could affect your clients ability to demonstrate employment eligibility. If you need more information about any of these, feel free to contact NEER or OSC.

Using the I-9 Employer handbook to advocate for your clients

Using the new I-9 Employer Handbook to advocate against document abuse

You may be aware that, beginning April 3rd, a new I-9 form, and along with it a new I-9 Employer Handbook, went into effect.
The I-9 form is used by employers to confirm that all new hires are eligible for employment. Note, that employers do not need to go back and use the new form to verify employment eligibility for current employees, just new hires going forward.
Unfortunately, some employers do not follow the I-9 process correctly and, in doing so, may not hire a worker who is legally authorized to work. This is referred to as "document abuse."

When one of your clients is experiencing document abuse, one of the best resources you can use to demonstrate to the employer that they are not following the law is the I-9 employer handbook. To download a copy of the employer handbook, which also contains a copy of the new I-9, click here.

Below, I will list some specific mistakes employers make and the page number in the handbook that you can refer to when speaking to the employer about the problem.
Note that all page numbers listed, are the pages that appear in the corners of the pages of the handbook, when printed out. These number will differ slightly from the page number that appears in the center bottom of the Adobe PDF Reader.

Asking for documents before the time of hire: The correct time to complete the I-9 procedure is at the time of hire, not at the time of the initial application or during the job interview. This is important, because it makes it easier for the OSC to determine that an employer is committing citizenship status discrimination or document abuse, since they should only look at the documents of applicants who they are otherwise ready to hire.

Furthermore, for a job that is expected to last for more than three days, employees have until their third day of work to actually show the documents to the employer. Direct employers to p. 5, 2nd paragraph.

Asking foreign-born applicants for specific documents or for more documents than those who appear to be born in the US: Workers may choose which of the I-9 documents they will show to employers, as long as they meet the minimum requirements as printed on the form. Foreign-born workers may not be required to show different documents than those required of US born workers. Direct employers to bottom of p. 6, 1rst paragraph, and to p. 19, items #1, 2, & 4 under "Document Abuse".

More intensively scrutinizing and/or rejecting documents of immigrants, even when they appear valid: Employers are not required to be document detectives. If they properly follow I-9 procedures, they will not be penalized for unknowingly hiring an undocumented worker who presents false documents. Furthermore, they may be penalized for rejecting legitimate documents of workers who appear foreign. Direct employers to bottom of p. 6, 2nd paragraph, and to p. 19, item # 3 under "Document Abuse".

Rejecting Documents with future expiration dates: Some employers will not accept a document with a future expiration date because they want to avoid hiring a worker with status that may be temporary for a permanent position. This could be considered both document abuse and citizenship status discrimination. Direct employers to page 12 under "Future Expiration Dates" and to p. 19 under "Citizenship Status Discrimination"

Requesting specific immigration documents when reverifying expired documents: For immigrants who presented a document from USCIS indicating temporary immigrant status, such as an EAD card, employers are required to "reverify" their employment eligibility when the document expires. Some employers illegally require the worker to show another document from USCIS. This is a common problem for refugees. Rather, employers should allow the worker to present any one document from List A or List C on the back of the I-9. Direct employers to p. 12 under "Reverifying Employment Authorization for Current Employees"

Requiring all workers to have a Social Security Card or Social Security Number: At times USCIS makes mistakes which cause significant delays in the process of issuing a Social Security Card and Social Security Number. Many employers refuse to hire workers who do not have a Social Security Number. Unless the employer participates in E-Verify, they may not require a worker, who is able to present the documents as required on the I-9, to present a Social Security Number, and even employers who do participate in E-Verify may not require that the worker show a Social Security Card. (For directions from SSA Click Here) Direct employers to p.5, final paragraph.

Because the I-9 Handbook contains the official instructions for documenting employment eligibility, it is an authoritative tool that employers will not be quick to dismiss. If, however, employers still insist on following discriminatory hiring policies, feel free to contact NEER or OSC.

Other H and L Visa Issues

The H-2A Visa is just one of many kinds of non-immigrant work visas.

Below is just a short list of the most common:

H-1B Visa: Specialty Occupation Workers The H-1B is for specialty occupations, in fields such as medicine or business, where it has been shown that there are no US workers with the specific skills to fill the position.
H1-B workers can switch employers if a new employer petitions for them.
A foreign worker can stay on a H1-B Visa for a maximum of six years, but it is possible for them to take steps toward lawful permanent residence.

H-2B Visa: Temporary Worker

The H-2B Visa fills non-agricultural temporary labor positions in fields such as hospitality, construction, and landscaping.

L-1 Visa: Intra-company Transferees

International companies with branches in the US and in other countries can transfer managers or workers with specialized skills, who have worked in the foreign branch for at least one year, to the US on an L-1 Visa.

The use of these visas serves an important function in our country, by filling employers' needs that they are unable to find US workers to fill. However, it is not legal to give preference to H and L Visa holders over US Citizens and Immigrants who are equally able to do the work. When this happens, it is considered a form of citizenship status discrimination.

OSC is currently investigating over 80 allegations of H and L Visa fraud. To file charges, contact OSC at 1-800-255-2688

Equal Access to Employment in Agriculture

In counties all across PA, there are temporary agricultural jobs waiting for employment-authorized immigrants or US citizens who are willing and able to do them. These jobs are not for everyone; wages typically range from minimum wage to $10.00 per hour and the working conditions are not always easy, but in areas where few jobs are available, particularly for workers with limited English or job skills, they may be the best or only option.

Because the work is physically challenging and the seasonal nature of the jobs is not always practical for workers, a guest worker visa, the H-2A Visa, was established. For a more complete list of types of worker visa and see below. Worker visas, unlike immigrant visas, were established to fill labor needs that were not being met by US citizens or immigrants; for this reason any US citizen or immigrant has first priority to fill those positions over an H-2A Visa holder. In this article, a "US worker" refers to any US citizen or legal immigrant, refugee, or asylee.

An employer who wishes to hire H-2A workers must first advertise job listings in several formats including state employment agencies. In PA, they advertise with CareerLink. They typically advertise positions months ahead of time, so they have time to then apply to have H-2A workers at their site. They need to leave the listing at CareerLink until the date when the H-2A workers leave their country to come to their work site. However, US workers can continue to apply for positions and be hired even after the start of the listed labor period. To check for listings of farm worker positions, google PA CareerLink. From the dropdown menu for "Occupation category" choose "Farming, fishing and forestry" and enter the region where the worker wishes to be employed. You may still need to sort through additional listings that are unrelated to agricultural labor.

In the final days of the Bush Administration there were reforms of the H-2A worker program, that are seen to favor growers at the expense of farm workers. On March 13, the Obama Administration proposed suspending the new regulations. If the proposal takes effect, the new rules will be suspended for a period of nine months. It is widely believed that at the end of this period, he will permanently return to the policies in place before the Bush reforms. One of the policies that were changed was to require that US workers applying for farm positions send copies of their work authorization with their initial application. This is illegal for all other types of positions. For this reason, with each of the CareerLink listings of growers who will be applying for H-2A workers, you will find the following text:

"You MUST bring your employment eligibility verification documents with you to the PA CareerLink in order to be referred to this opportunity. Acceptable documents include your U.S. Passport, permanent resident card, drivers license, voters registration card, military ID, Social Security card, original or certified copy of birth certificate, or U.S. Citizen ID Card to the Pennsylvania CareerLink "

Because the government does not want H-2A workers to severely undercut the prevailing wages of the community, they have historically allowed the state Departments of Labor to determine the wage. In PA and surrounding states, this rate was based on an "Adverse Effect Wage Rate" of $9.70. With the Bush changes the power to determine this wage was put in the hands of the federal government, and they set the rate in some cases at just 25 cents over the minimum wage for each state. For this reason, some of the farms have wage rates listed that are under last year's minimum rate of $9.70.

Growers are required to provide free housing for H-2A workers. They also provide cooking utensils, refrigerators, and transportation to purchase food on at least a weekly basis. These same accommodations must also be offered to US workers who do not live in the immediate vicinity of the job site.

Some growers have been known to show a preference for H-2A workers over US workers. At times they have done this by advertising unrealistic work requirements such as, "Must be able to lift 200 lbs on a regular basis." If these requirements are not truly necessary for the tasks, or are not equally required of US Workers and H-2A workers, they can be challenged. Also if US Workers apply for positions with the farms and are told by either CareerLink staff or the growers that positions are already filled, they should report it. Reports can be made to any of the following:

Todd Miller at NEER
Tel: 215-747-7500 Ext. 257
Email: toddm@lcfsinpa.org

The Office of Special Counsel (OSC)
Tel: 1-800-255-2688

How is NEER helping clients?

The following are true stories of workers who have been helped by NEER and OSC when faced with immigration-related unfair employment practices. Names of workers and employers have been changed for reasons of confidentiality.

Harold Manneh obtained employment, through a temp agency, as a security guard with a university in Philadelphia. His supervisor at the university was impressed with his attitude and recommended that Mr. Manneh apply for a permanent position with campus security. Mr. Manneh applied for a position and waited. After not hearing about the stutus of his application, he checked with the supervisor, who inquired and learned that they were not considering his application because they preferred US Citizens for security positions.

Harold contacted NEER. NEER staff contacted the Human Resource Office and explained that this is Citizenship Status Discrimination. Unless the position is for the US government or a contractor where federal regulations require that workers be US Citizens, employers are not allowed to make this requirement. After speaking with NEER staff, the employer hired Mr. Manneh.

My Thi Nguyen was hired as a Nursing Assistant at Peaceful Valley Senior Home. Her documents were accepted at the time of hire, but three weeks later she was called by the Human Resources Director, because the Employment Authorization Document that she had provided was expired. She offered them an unexpired Driver's License and an unrestricted Social Security Card, but they told her that they would need to let her go if she could not provide a document from DHS, because they were concerned that she was no longer eligible for employment.

Ms. Nguyen was directed to NEER. NEER staff wrote a letter to the Human Resource Director explaining that Ms. Nguyen was legal to work and that the documents she had provided were acceptable List B and List C documents on the I-9 form. He directed them to the instructions on the I-9 handbook that explained that refusal to accept legal documents was a violation of anti-discrimination provisions of the Immigration Reform and Control Act. Upon reciept of this letter, the human resource office contact Ms. Nguyen to say she could continue working.

Thomas Sheriff applied with Hoffman Home Care, a home care referral agency, to be on their list of home care assistants. He was told that he needed to renew his EAD card in order for him to be referred to clients, despite the fact that he was able to provide other legal documents for employment. Mr. Sheriff went to a resettlement agency to renew his EAD (at a cost of $340), and was referred to NEER.

NEER staff contacted the agency and explained that, as an agency that provides employment referrals for a fee, they were required, as were employers, to accept whichever documents the worker chose to give, as long as they were acceptable according to the I-9. Hoffman Home Care's attorney argued that the agency could choose which documents they wanted to accept, because they were not the employer, but rather a referral agency. A staff attorney from the Office of Special Counsel was contacted and he explained the law to Hoffman's attorney. Hoffman has now agreed to provide referrals, and Mr. Sheriff is working.

The Social Security Card and Immigrant Workers

When providing trainings on immigrant employment issues, I have been asked a number of questions regarding the Social Security Card / Number and employment documentation issues:

Is it necessary for workers to show a Social Security Card to be employed?

No, it is not necessary. When completing the I-9 form, there are many options for documenting work eligibility. While the Social Security Card is one of the most common ways, it is not necessary.

Is it possible for refugees, asylees, and other legal immigrants to work before receiving a Social Security Number?

When there is a signicant delay in receiving a social security number from the SSA, it may still be possible to be employed if the worker has other documents to prove work eligibility. To read the Social Security Administration's directive on this matter, Click Here.

What will happen if a worker or employer submits an inaccurate Social Security Number?

Every year employers send wage reports for their workers to the Social Security Administration. SSA uses this information to determine workers' eligibility for Social Security benefits, and the amounts of these benefits. If the employee's name and SS number presented by an employer do not match the number and name in the SSA database, it is impossible to attribute the income to the correct person. For this reason, SSA has until recently sent employers a "No-Match" letter.

When receiving a No-Match letter, employers who follow the procedures below, will be protected from charges by DHS and by OSC. OSC has advised employers to

1. Check their own records for errors.
2. Inform employee of the No-Match letter.
3. Request that employees check their record for errors.
4. Refer employee to the local SSA office for assistance.
5. Submit any employer or employee corrections to the SSA.
6. Allow the employee to continue working and receiving pay for at least 90 days while waiting for the issue to be cleared up with SSA.
7. Treat all employees, immigrants and non-immigrants the same.

One important court case tested what rights workers have when employers unfairly let them go based on "No-Match" letters. In early 2003, the Aramark Corporation received "No-Match" letters for 48 of their employees working at the Staples Center, in Los Angelos. The corporation sent letters to these employees asking that they clear up the problem within three business days. Of those 48 employees, 33 were unable to clear up the problem before the deadline and were let go. Their labor union sued on their behalf and after working it's way through the appeal process, the workers were eventually reinstated in their jobs and given back pay for the time they were out of work.

At the current moment, because of a lawsuit pending in the 9th Circuit Court, employers are not being sent the "No Match" letters. Rather they are being sent directly to the employee. However, they may soon resume sending them to employers.

Employers who have questions about these procedures can contact OSC's Employer Hotline: 1-800-255-8155, or contact NEER at 215-747-7500 Ext. 257.

Another question is currently being addressed by the US Supreme Court: What legal penalties can be applied to undocumented workers whoknowingly provide false Social Security numbers? Last year immigration officials raided a meat packaging plant and arrested 389 workers for having false documents. They charged them with identity theft using a law that was originally set up to prosecute thieves who use false documents to steal from bank accounts. This use of the law is being challenged in the Supreme Court. For more information about this case Click here.

Know your rights when dealing with E-Verify

E-Verify is an internet-based system developed by USCIS to electronically verify employment eligibility of newly hired employees. It does this by checking the authenticity of documents used with the I-9 process. On September 8, 2009, the E-Verify system became mandatory for all federal contractors and subcontractors. In Pennsylvania it is mandatory for all state agencies, and in some states it is mandatory for all employers. The number of private employers who choose to use E-Verify is currently small, but quickly growing. Although there are some benefits to using E-Verfiy, perhaps the largest problem is with false non-confirmations of eligibility that can occur when there are errors in either Social Security or Homeland Security databases, or when employers incorrectly type employees names or numbers. For this reason, it is important that both employers and employees are aware of proper procedures put in place to safeguard workers rights. Employers who use E-Verify should: Use the program to verify the eligibility of all new hires, not just those who appear foriegn. Use the system after employees have filled out the I-9, not to pre-screen employment applicants. Provide employees with notice of Tentative Non-Confirmations (TNC) promptly. Inform employees of their right to contest Tentative Non-Confirmations (TNC), and provide them with instructions about how to do so, including a written notice generated by E-Verify. Allow employees to continue working while they are contesting the TNC. Employers should not fire, suspend, or delay the first day of employment, or withold pay for a worker who chooses to contest the Tentative Non-Confirmation. They may only take such action if and when they receive Final Non-Confirmation. If a worker, who knows she is legally entitled to work, recieves a Tentative Non-Confirmation, she should immediately tell the employer that she wishes to contest the Non-Confirmation. She will then be given a printout which indicates whether the discrepency is with Social Security or with the Department of Homeland Security(DHS). Discrepencies with SSA should be addressed promptly by going to the Social Security office. If the discrepency is with DHS, the printout will provide a telephone number that the worker can use to address the issue. The USCIS Website has a publication listing employee rights regarding E-Verify, which has been translated into Chinese, Creole, French, Korean, Russian, Spanish, Tagalog, and Vietnamese. To access these translations, Click Here and scroll to the bottom of the webpage.

Language Proficiency and National Origin Discrimination

Statistically, a newcomer's level of English proficiency is one of the biggest predictors of financial success in this country. It is important for those who assist newcomers with employment issues also be aware of local adult ESL educational opportunities. Yet, regardless of an immigrant's current level of language proficiency, they need to be able to find work.

If a job applicant's level of English proficiency is insufficient to perform a job's duties, an employer will naturally be unwilling to hire them. However, if an employer, perhaps based on feelings of nationalism about the English language, unnecessarily eliminates a person from consideration for a job that they are able to perform, they are committing a form of national origin discrimination, which is prihibited under Title VII of the Civil Rights Act of 1963.

The are several common categories of national origin discrimination related to language:

• Accent discrimination - An employment decision based on an applicants accent needs to take into account both the severity of the accent and the specific duties required for the position. Employers should distinguish between a merely discernible foriegn accent and one that interferes with communications skills needed for job duties. It is not sufficient to show that there are customers
• English fluency requirements - Similarly, employers should not have broad fluency requirements that apply across all departments and positions, but rather for each position should consider the level of language ability necessary. Many positions that involve work where little explanation is required should have little or no language requirement at all.
• English-only policies - After hiring decisions are made, employers should not develop English-only requirements for the workplace unless they are able to show that such policies are necessary for reasons of safety or efficiency.

As you deal with non-native speakers who are seeking employment, we recommend the following:

• For clients with very limited levels of English, encourage them to take the long view, accepting positions where their level of English is sufficient for job duties, while at the same time working hard to improve their English so they will be ready for other better positions in the future.
• For clients who have achieved a certain level of spoken fluency, talk to them about how to market themselves when searching for employment. They should emphasize the fact that they are bilingual and may be able to draw in new clients because of their language ability, rather than the fact that their English is less than perfect.
• Make sure your clients know about their rights under the law, and whom they can contact should they face national origin discrimination. One way to do this is by scheduling a NEER employment training at your site.

If you hear about any cases where employers are committing national origin discrimination, or wish to discuss whether actions are legal, you can contact the NEER program or the Office of Special Counsel at the numbers provided above.

Avoiding Problems before they start

By teaching your clients to properly fill out the I-9 before they begin, you may be able to minimize the risk that they will face problems with employers later on.

Just as it may be necessary to work with newcomers on job application skills, it may also be helpful to spend some time teaching them how to fill out the I-9 form. When you do so, the following tips may help to avoid problems:
The instructions to the I-9 tell employers that providing the Social Security Number is voluntary. Employees who are authorized to work, but who do not yet have Social Security cards can leave that section blank. The only exception to this is for employers who use the E-Verify system.
After entering their personal information, employees need to state whether they are:
A citizen or national of the United States
A lawful permanent resident
An alien authorized to work until ___________
Refugees and Asylees who have not yet recieved permanent residence should choose the third option, but in the blank provided for the expiration date should indicate "N/A - Refugee" or "N/A - Asylee."
3. The employer will fill out Section 2 of the form. When choosing the documents to show work eligibility, encourage clients to use the most commonly-known documents that they possess.
When employers are faced with unfamiliar documents they are more likely to respond by being overly (and illegally) stringent in their documentation requirements. By using commonly known documents such as a state ID or driver's license and Social Security card, the client will decrease unnecessary confusion.

"Do you have a Green Card?"

Dealing with employers who go beyond the requirements on the I-9

If you have worked for a long time assisting newcomers in seeking employment, you have likely experienced employers who have more stringent documentation requirements than those listed on the I-9 form. This illegal practice is referred to as "Document Abuse."

The I-9 form, which federal law requires all newly-hired employees to fill out before beginning employment, lists the various choices for immigrants to demonstrate authorization to work in the United States.

The final page of the I-9 form contains three lists of documents for demonstrating work authorization. List A documents act as both a picture ID and as evidence of work eligibility. List B documents only act as an ID, and List C documents only demonstrate work eligibility. Thus List A documents are sufficient on their own, whereas List B and C documents must be used together.

The following is a list procedures that some employers do not follow, causing difficulties for our clients:

Allow the employee to choose which documents they wish to show. Employers may not specifically require USCIS documents if the employee is able to provide more common documents such as a driver's license and Social Security card.

Employers are not expected to be document detectives. They should accept any document as authentic if it reasonably appears on its face to be genuine.

The Permanent Resident Card (I-551) needs to be unexpired on the date of hire, but employers do not need to reverify whether current employees are eligible for employment when the document expires.

Expired EADs from a Temporary Proctective Status (TPS) recipient should be accepted if DHS has granted an automatic extension. To see a current list of extensions, click here.
must be unexpired on the date of hire, and upon the documents expiration, the employer must reverify employment eligibility:

In cases where employers need to reverify documents, after expiration, they should follow the following procedures:

• Provide the employee with 90 days notice.


• Accept any List A or List C document to demonstrate work authorization. List B documents do not need to be reverified.


• Do not require specific documents. Accept any eligible option from these lists.

Do not require a Social Security Number from applicants who have not yet received a Social Security Card, if the applicant has other employment authorization documents. Employers who use the E-Verify system to check employees work authorization may need to delay running the check until the employee has received the Social Security Card.

When clients report that employers are not following these procedures, it is useful to write a letter in which you refer specifically to the I-9 Form or the I-9 Employer handbook.
For assistance with this, feel free to contact me at NEER (215-747-7500 Ext. 257), or contact the Office of Special Counsel directly (1-800-237-2515).