10 Tips to Avoid Discrimination in the I-9 Process


Although it may seem straightforward to request a new employee fill out the required Form I-9 to verify work eligibility, it actually requires a light touch. Employers must request enough information to comply with the Immigration Reform and Control Act of 1986 (IRCA), but not too much — or the wrong kind — which could imply discrimination.

The following ten tips can help employers avoid discrimination claims in the I-9 process.

  1. Treat all people the same when completing Form I-9.
  2. Avoid restricting job applicants to those of a particular citizenship status — such as U.S. citizen or permanent residence — unless mandated by law or federal contract.
  3. Allow employees to choose from the list of acceptable documents on the I-9 form to prove their identity and authorization to work in the U.S.; the employer may not demand that a specific document be provided.
  4. Do not require additional documents or information based on an employee’s citizenship status or national origin.
  5. Do not ask to see employment authorization documents before an individual accepts a job offer.
  6. Do not refuse to accept a document — or refuse to hire an individual — because a document will expire in the future.
  7. Apply the employment eligibility verification process equally to all employees when reviewing documents to complete Section One of the I-9 form.
  8. If necessary to re-verify employment eligibility, accept any valid documents presented from either List A or List C, whether or not they are the same documents the employee initially provided.
  9. Be aware that U.S. citizenship belongs not only to persons born within the 50 states, but may belong to —
    • Persons born to a U.S. citizen outside the U.S.;
    • Persons born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, American Samoa and Swains Island; and
    • Immigrants who become a U.S. citizen by completing the naturalization process.
  10. Complete the I-9 form and keep it on file for at least three years from the date of employment or for one year after the employee leaves the job, whichever is later.

Failure to complete an I-9 form is a serious violation. At the same time, employers need to be careful not to go overboard which could expose them to discrimination claims when verifying that non-citizens are authorized to work.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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