Document Abuse and Household Employment

All U.S. citizens, legal immigrants, and certain other groups are protected from document abuse under the Immigration Reform and Control Act of 1986 (IRCA). According to the U.S. Department of Justice’s Office of Special Counsel, document abuse occurs when an employer (or potential employer) asks an employee (or an employee candidate) to produce a specific document to establish employment authorization, rather than allowing the employee to select what document to produce from the list of acceptable documents under IRCA. It can also occur if an employer or potential employer requests a different document other than the one the employee has selected from the authorized list. In addition, document abuse includes an employer’s (or a potential employer’s) rejection of valid documents that appear genuine and related to the individual. For instance, document abuse can occur when an employer, upon hiring an immigrant employee, asks them to produce proof of employment eligibility but then refuses to accept an unrestricted, legitimate-looking Social Security card with the employee’s name, and instead requires the employee’s green card.

The employee must produce proof of employment eligibility and identity within three business days after she or he begins work.

Proof of employment eligibility may be a green card or any U.S. Citizenship and Immigration Services (USCIS)-issued document. According to IRCA, employers must accept any document or combination of documents listed on the USCIS Form I-9 to establish identity and employment eligibility.

Such documents can include:

• a U.S. passport, an alien registration receipt card, or a permanent resident card (Form I-551);

• an unexpired foreign passport containing an I-551 stamp; or,

• an unexpired employment authorization document issued by the USCIS that contains a photograph (form I-766).

The list of documents to establish employment eligibility and identity is extensive. See a complete list of I-9 acceptable documents and more information on Form I-9 here.

Employers who have failed to complete Form I-9 will be sanctioned by the USCIS if they hire aliens not authorized to work within the United States. Fines may be up to $3000 per employee and/or include a six-month prison sentence if the employer demonstrates a persistent pattern of hiring unauthorized aliens. However, an employer who has completed Form I-9 correctly for an employee is protected from liability, even if the employee turns out to be not authorized to work. The nature of the documents that are acceptable under Form I-9 does mean that, on occasion, an alien without work authorization will be able to produce documents that comply with Form I-9, even though the alien is, indeed, not authorized to work.

For more information, contact GTM’s Household Employment Experts at (888) 432-7972.