Sometimes You Can Go Too Far: How to Avoid Citizenship Status Documentation And Document Abuse

by Gary Endelmanon September 16, 2011

[Editor's note: today's blog is courtesy of Gary Endelman, Senior Associate at Fong & Associates LLP]. The opinions expressed are solely those of the author.

Sometimes you have to know when to stop. That is not as easy as it sounds. Conscientious employers are well aware that the I-9 cops will be on them like a cheap suit if they hire anyone who does not have permission to work in the United States. So, the thought goes, you can never be too careful. If some proof is good, then more doubtless is better. Right? This is where the best of intentions can create a boatload of unanticipated headaches. Read on friend.

If you have not had the pleasure of reading section 274B (a) (6) of the Immigration and Nationality Act, let me introduce you to its tender mercies:

A person’s or other entity’s request for purposes of satisfying the requirements of section 274A (b) for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual …

An employer simply is not allowed to dictate or select what supporting I-9 documents a job applicant elects to offer up.[1] However, such a request is an unfair employment practice only if accompanied by intent to discriminate.[2] This comes from Section 421 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996- the brainchild of Congressman Sonny Bono. It is otherwise known to us aging Boomers as the “I’ve Got You Babe!â€