DOJ advises employers to be a little less helpful in Form I-9 process

Posted February 21, 2017

By Katie Loehrke, PHR, editor, J. J. Keller & Associates

Employers were required to begin using a new Form I-9 by January 22, 2017, so the spotlight has already been shining on the Form I-9 process. But also in January, regulations from the U.S. Department of Justice (DOJ) went into effect, making it easier for employers to be charged with discrimination in conjunction with the I-9 process.

The issue at hand? Asking employees for specific documents, even if doing so is an attempt to be helpful.

Wasn’t that already problematic?

Asking for specific documents from employees for the Form I-9 has always been problematic. But before these regulations came into play, employers could escape liability if their intent was not to harm an individual (to make it more difficult for an individual to gain employment, for example).

Now, discrimination can be shown when an employer intentionally treats an individual differently based on national origin or citizenship status, “regardless of whether such treatment is because of animus or hostility.”

For instance, for an individual who selects “A lawful permanent resident” in Section 1 of the I-9, it would likely be problematic to:

  • Request or require him or her to present a permanent resident card rather than other documents that satisfy the I-9 requirements.
  • Accept a driver’s license (List B) and social security card (List C) presented by the worker, but also ask to see his or her permanent resident card.

Skip the suggestions

Even recommending certain documentation to employees during the I-9 process can be seen as discriminatory.

For instance, in an attempt to make it easier for employees, many employers are accustomed to suggesting that employees bring in their driver’s license and social security card. But with its recent regulations, the DOJ reminds employers that there is such a thing as being too helpful. Just suggesting certain documentation can create the impression that the employer prefers workers who can present the specified documents.

The DOJ’s regulations explain that the best way for employers to “help” employees while still avoiding the risk of discrimination is to “provide all workers with the Lists of Acceptable Documents and explain to them that they may present one List A document or one List B document and one List C document.”

Essentially, the way employers explain I-9 documentation requirements to employees should be exactly the same, no matter what type of work authorization an individual has.

Don’t forget the training

In many organizations, supervisors carry out the bulk of I-9 responsibilities. Regular training should help them understand how to correctly complete this deceptively simple form. Such training should include reminders for supervisors on what they may and may not say to employees, particularly given the DOJ’s most recent guidance.

The key to remember is this: Employers may not request specific documents from employees during the Form I-9 process, and could now face a discrimination claim even when the employer’s intent was to help an employee.

About the author:

Katie Loehrke

Katie Loehrke is a certified Professional in Human Resources and an editor with J. J. Keller & Associates, a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter and its Essentials of Employment Law manual. For more information, visit