I-9 in light of Deferred Action

Earlier this year, President Obama made an Executive Order that did what Congress had failed to do for several years. That is, those immigrants that were brought here illegally as children to stay for now and have the ability to work. We covered all of the conditions in an earlier blog post.

The I-9 Form requires you verify the legal status of those that you hire within 3 days of their employment. They must provide a document from “Column A” or one from each of Columns B and C. The “A” list documents provide both proof of identity AND authorization to work. One of the documents in List A is an I-766 Employment Authorization Document (EAD). The EAD will be the sole document needed to allow the holder verification on the I-9 form.

Remember you are not allowed, under discrimination laws, to ask for particular documentation for verification under the I-9 process. You must accept the documents presented to you provided that they appear genuine on their face. You are also not allowed to ask the new employee for what reason he got the EAD. If an employee comes to you with new documentation that now legitimizes his employment where he had provided false documentation before, you need to tread lightly. I would recommend speaking with your attorney. The individual is now authorized to work and you cannot fire him as an illegal alien. You can, however, take disciplinary action for providing fraudulent documents previous to his now legal status. Again this is an area I would speak to an attorney or as some say… that guy that’s going to be keeping you out of jail.

Although I haven’t run into this yet, I would also be careful if you are in one of those states that requires E-Verify this year. The E-Verify system should be up to date with the EAD’s but if someone shows up with an EAD and you get a tentative non-confirmation, don’t be totally surprised. Treat it just like you would normally and give the employee the ability to contest and get it fixed. It shouldn’t take long to get caught up.

Feel free to call us on this if you have questions.