Asking New Hires for Green Cards Is Illegal

By Roy Maurer Apr 3, 2017

A Miami-based pizzeria franchise is the latest employer to be penalized for asking newly hired employees for specific identity or work authorization documents during the employment verification process.

The U.S. Department of Justice (DOJ) settled with Pizzerias LLC in March to resolve an investigation over allegations that the company asked foreign-born legal resident workers to produce green cards as proof of employment eligibility. The company has agreed to pay a civil penalty of $140,000, train their human resources staff, and be subject to regulatory monitoring and reporting requirements.

All workers, including foreign workers, are allowed under the Immigration and Nationality Act (INA) to choose whichever valid documentation they want to present from lists of acceptable documents to prove their work authorization.

[SHRM members-only toolkit: Complying with I-9 and E-Verify Requirements]

"As an employer, you cannot ask employees to provide a specific document or documents when completing section 2 of the Form I-9," said Montserrat Miller, a partner in the Washington, D.C., office of Arnall Golden Gregory. "Employers cannot tell employees what documents to present. As an employer, your responsibility is to show the list to employees and have them select which documents they will present for section 2 completion."

The department's investigation concluded that Pizzerias routinely requested that lawful permanent residents produce a permanent resident card to prove their work authorization, while not requesting any specific document from U.S. citizens.

"When an employer requires certain documents from some individuals but not others, this can lead to a claim of discrimination based on national origin or citizenship under the INA," Miller said.

This is referred to as document abuse and falls under the regulatory eye of the DOJ's Immigrant and Employee Rights Section, formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices.

Miller explained that individuals who check the box in section 1 of the Form I-9 to indicate that they are lawful permanent residents can present either a permanent resident card or a driver's license and unrestricted Social Security card, for example.

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