IER's Frequently Asked Questions (FAQs)
General IER Information
Filing a Charge or Reporting a Problem
IER's Public Education and Outreach
Unfair Documentary Practices
Reverification Issues
Temporary Protected Status ("TPS")
E-Verify
Social Security Number/Name Issues
Citizenship Status Discrimination
National Origin Discrimination
Name Change
- What is the Immigrant and Employee Rights Section (IER)?
- What type of employer conduct does the Immigration and Nationality Act's (INA) anti-discrimination provision prohibit?
- How do I file a charge with IER?
- What happens after a charge is filed?
- Can I report a violation of the anti-discrimination provision without filing a charge?
- How can I contact IER for assistance?
- How does IER's hotline work?
- Can an IER staff member speak at my upcoming live presentation?
- Who is the IER point of contact for inquiries from the media?
- Which documents may I show my employer to establish my identity and permission to work?
- What is the difference between an "Employment Authorization Document card (Form I-766)" under List A of the Form I-9's Lists of Acceptable Documents and an "Employment authorization document issued by the Department of Homeland Security (DHS)" under List C?
- What receipts are listed at the bottom of Lists of Acceptable Documents?
- If a worker records a USCIS or A Number on the Form I-9, does an employer need to see, or can it ask for, a document with that number?
- My new employer is requiring me to provide an expiration date for my status as a refugee in Section 1 of the Form I-9. Do I have to provide an expiration date in Section 1?
- May an employer ask an employee to present a Social Security card for payroll (and not I-9) purposes?
- Does an employer need to see a worker's Social Security card to make sure that the Social Security number completed in Section 1 is correct?
- My employer asked me to verify my employment eligibility by showing a document issued by the Department of Homeland Security because I am not a U.S. citizen. Is my employer allowed to do this?
- A job applicant presented an Employment Authorization Document that expires next month. As an employer, I don't want to train the worker without an assurance that the worker will still be employment-authorized in the future. May an employer reject the applicant for employment due to the uncertainty of continued employment authorization?
- A worker has presented an employer with a document that looks fake. Can an employer refuse to accept it without violating the anti-discrimination provision?
- A worker's DHS-issued Employment Authorization Document expired and the worker wants to show a Social Security card for reverification. Does the employer need to see a current DHS document?
- Does an employer need to reverify the work authorization of lawful permanent residents who produce a "green card" with a future expiration date?
- If I am a lawful permanent resident, do I need to show my employer a new unexpired Permanent Resident Card, when the card expires?
- I have Temporary Protected Status (TPS), and the Department of Homeland Security extended my Employment Authorization Document. My employer insists that I show an unexpired card to continue working. Do I need to?
- When my employer created an E-Verify case with my information, I received a Tentative Nonconfirmation (also known as a mismatch) and notified my employer that I have decided to take action to resolve the mismatch. I have work authorization but my employer told me that I can start working only after I resolve my mismatch. Is my employer allowed to do this?
- Is an employer that participates in E-Verify allowed to terminate or suspend an employee who decides to resolve a Tentative Nonconfirmation (also known as a mismatch), based on the mismatch?
- If a worker's name and Social Security number don't match the Social Security Administration's records, should the employer automatically conclude that the worker is not authorized to work?
- I was rejected for a job because I am not a U.S. citizen. Is this citizenship status discrimination?
- I was rejected for a job because the employer only likes to hire workers on temporary visas. Is the employer allowed to do this?
- May I ask job applicants for citizenship or immigration status information?
- If my company engages in activity regulated by the International Traffic in Arms Regulations (ITAR) or the Export Administration Regulations (EAR), does the ITAR or the EAR require me to hire only U.S. citizens?
- I applied to a job with a small employer, and it refused to hire me due to my national origin. Is that employment discrimination?
- I applied for a job with a small employer and was informed that to be hired I would need to speak English without a foreign accent. Is this legal?
- My employee presented Form I-9 documentation in which the employee's name differs from the name they listed on their Form I-9. Can I accept the documentation?
- How should I, as an employer, handle a situation in which an employee's Form I-9 documentation differs from the name they listed on their Form I-9?
General IER Information
Q. What is the Immigrant and Employee Rights Section (IER)?
A. The Immigrant and Employee Rights Section (IER) of the U.S. Justice Department's Civil Rights Division enforces the anti-discrimination provision of the Immigration and Nationality Act (INA). This law protects work-authorized individuals from employment discrimination in hiring, firing, and recruitment or referral for a fee based upon citizenship, immigration status, and national origin; unfair documentary practices when verifying employees' employment eligibility (Form I-9 and E-Verify); and retaliation. Individuals who believe they have been discriminated against may file charges with IER and may be entitled to receive back pay and reinstatement, among other remedies.
Q. What type of employer conduct does the INA's anti-discrimination provision prohibit?
A. The Immigration and Nationality Act's (INA) anti-discrimination provision, found at 8 U.S.C. § 1324b, prohibits four types of unfair employment practices:
1. Employers with four or more workers cannot discriminate because of citizenship status with respect to hiring, firing, and recruitment or referral for a fee, subject to certain exceptions. Citizenship status includes a person’s immigration status. Recent lawful permanent residents, U.S. citizens, U.S. nationals, and people granted asylum or refugee status are protected from citizenship status discrimination under the INA. Lawful permanent residents who do not apply for naturalization within six months of eligibility by virtue of their period of residency and certain other non-U.S. citizen categories are not protected from citizenship status discrimination under the INA. An employer may restrict hiring to U.S. citizens only when a law, regulation, executive order, or government contract requires the employer to do so.
2. Employers with four to 14 workers cannot discriminate because of national origin with respect to hiring, firing, and recruitment or referral for a fee. This type of discrimination includes treating individuals differently because of their place of birth, country of origin, ancestry, first language, accent or because they are perceived as looking or sounding "foreign." All work-authorized individuals are protected from national origin discrimination by small employers under the law that IER enforces. The Equal Employment Opportunity Commission has jurisdiction over national origin discrimination claims against employers with 15 or more workers.
3. Employers of any size cannot engage in unfair documentary practices related to verifying employees' employment eligibility during the I-9 and E-Verify processes. Specifically, employers are not allowed to, on the basis of citizenship, immigration status, or national origin, request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents, or specify certain documents over others.
4. Employers of any size cannot engage in intimidation or retaliation. Employers are not allowed to intimidate, threaten, coerce, or retaliate against individuals for filing charges with IER, cooperating with an IER investigation, contesting an action that may constitute unfair documentary practices or discrimination based upon citizenship status or national origin, or otherwise asserting rights under the INA's anti-discrimination provision.
Filing a Charge or Reporting a Problem
Q. How do I file a charge with IER?
A. Individuals who believe they have suffered discrimination under this law may file a charge of discrimination with IER by completing and submitting a charge form electronically online, or emailing, mailing or faxing the IER charge form to:
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW (4CON)
Washington, DC 20530
Fax: 202-616-5509
Website: www.justice.gov/IER
Email: [email protected]
IER’s charge form is available in several languages. Charges must be filed within 180 days of the alleged discrimination or retaliation. More information on filing a charge is available here.
Q. What happens after a charge is filed?
A. After IER receives what it deems to be a charge, IER will begin its investigation. If IER has not filed a complaint with an Administrative Law Judge (ALJ) within 120 days of receiving a charge, it will send a letter notifying the injured party or authorized representative of their right to file an administrative complaint against the respondent, and indicating whether IER is continuing its investigation. IER will also notify the respondent of its decision to continue an investigation. IER may also file a complaint with an Administrative Law Judge after this 120-day investigatory period.
Once a case is filed, pre-trial matters are generally handled in accordance with the applicable rules of practice and procedures, and involve discovery, depositions, and pleadings. Administrative Law Judge decisions are directly appealable to the federal circuit courts of appeals. Settlements or successful adjudications may result in civil penalty assessments, back pay awards, hiring orders and the imposition of injunctive relief to end discriminatory practices.
Q. Can I report a violation of the anti-discrimination provision without filing a charge?
A. Yes. IER has authority to initiate independent investigations based on information developed during individual charge investigations, or information provided by other government agencies and the general public. Independent investigations often involve discriminatory policies, practices, or processes that potentially affect many employees or applicants. To report a potential violation of the anti-discrimination provision without filing a charge, you may call IER's worker hotline or email us.
Q. How can I contact IER for assistance?
A. To reach IER by telephone:
- 1-800-255-7688 (worker hotline), or 1-800-237-2515 (TTY)
1-800-255-8155 (employer hotline) or 1-800-237-2515 (TTY)
1-202-616-5594 (direct office line)
By e-mail:
By Fax:
- 1-202-616-5509
By mail:
- Civil Rights Division
U.S. Department of Justice
Immigrant and Employee Rights Section
950 Pennsylvania Avenue, NW (4CON)
Washington, DC 20530
IER's Public Education and Outreach
Q. How does IER's hotline work?
A. IER has multilingual staff, including attorneys, ready to assist workers, employers and the public who contact IER through its worker or employer hotline. IER's hotlines provide workers and employers with an opportunity to receive information about the anti-discrimination provision of the INA and to work directly with IER's staff to resolve potential immigration-related employment disputes informally and quickly without contested litigation. Workers and employers are encouraged to call the respective hotlines above to seek assistance with immigration-related employment issues. Please note that IER cannot provide legal advice or individual legal representation. Language services are available and free of charge.
Q. Can an IER staff member speak at my upcoming live presentation?
A. Maybe. IER staff may be available to participate in seminars, conferences, and workshops to educate employers, workers or other members of the public about protections and obligations under the anti-discrimination provision. Please submit all requests by email to [email protected] or call (202) 616-5594 and ask to speak with IER's Outreach Coordinator.
Q. Who is the IER point of contact for inquiries from the media?
A. Members of the media should contact the Justice Department's Office of Public Affairs. The Office is responsible for ensuring that the public is informed about the Department's activities and about the priorities and policies of the Attorney General and the President with regard to law enforcement and legal affairs. The telephone number for the Office of Public Affairs is (202) 514-2007.
Unfair Documentary Practices
Q. Which documents may I show my employer to establish my identity and permission to work?
A. The Department of Homeland Security has designated several combinations of acceptable documents from which workers can choose to prove their identity and permission to work. The Form I-9 contains Lists of Acceptable Documents that fall into three categories (see next question for additional information about acceptable documents). A worker is allowed to produce either List A documentation (establishing both identity and permission to work), or a combination of documentation from List B (establishing identity) and List C (establishing permission to work). Employers can't specify which documents they will accept from a worker and should not prevent an individual from working because of a document's future expiration date. For further information about acceptable documents, visit I-9 Central. For concerns about possible discriminatory practices relating to employment eligibility verification, contact IER.
Q. What is the difference between an "Employment Authorization Document card (Form I-766)" under List A of the Form I-9's Lists of Acceptable Documents and an "Employment authorization document issued by the Department of Homeland Security (DHS)" under List C?
A. An Employment Authorization Document (EAD, Form I-766) is a List A Form I-9 document and sometimes known as a “work permit” or “Employment Authorization Card.” By contrast, an “Employment authorization document” issued by DHS under List C refers to other types of DHS-issued documents that do not otherwise fall within the Lists of Acceptable Documents. Some examples of these documents include a Form I-94 issued to someone granted asylum or work-authorized nonimmigrants (for example, U visa holders and some T visa holders, and H-1B visa holders) because of their immigration status, an unexpired Reentry Permit (Form I-327), Certificate of U.S. Citizenship (Form N-560) or Replacement Certificate of Citizenship (Form N-561) (PDF, 40 KB), a Certificate of Naturalization (Form N-550) or N-570 (PDF), and a Form I-797 issued to a conditional resident extending the validity of their Permanent Resident Card, in combination with their Permanent Resident Card. You can learn more by visiting I-9 Central’s page on Acceptable Documents, calling IER, and contacting USCIS user support."
Q. What receipts are listed at the bottom of the Lists of Acceptable Documents?
A. A worker may present a receipt in lieu of a listed document to complete Section 2 of the Form I-9 as long as the receipt is an acceptable receipt for I-9 purposes. The receipt is valid for a temporary period. There are several types of acceptable receipts:
- A receipt for the application for a replacement of a lost, stolen, or damaged document. The receipt is valid for 90 days from the first day of work or, in the case of reverification, from the date the worker's employment authorization expired. By the end of the 90-day receipt period, the worker should present the replacement document to complete the Form I-9. If the worker doesn't have the replacement document, the worker can show other acceptable Form I-9 documentation from the Lists of Acceptable Documents.
- A Form I-94 containing a temporary I-551 stamp and a photograph of the individual, which is considered a receipt for Form I-551. The worker must present the Form I-551 by the expiration date of the temporary I-551 stamp, or within one year from the date of issuance of the Form I-94 if the I-551 stamp does not contain an expiration date.
- A Form I-94 containing an unexpired refugee admission stamp. Someone granted refugee status may have an electronic or paper Form I-94. If a refugee presents the departure portion of a Form I-94A containing an unexpired refugee admission stamp or a computer-generated printout of Form I-94 with an admission class of "RE", the employer must accept it. This is considered a receipt for a List A document. The worker must present either an Employment Authorization Document (EAD) or a combination of a List B identity document and an unrestricted Social Security card within 90 days after the first day of work, or in the case of reverification, the date employment authorization expires.
- An unexpired Form I-94 containing a class of admission of UHP or OAR. Employees may present this List A receipt to show evidence of identity and employment authorization. This receipt is valid for 90 days from date of hire or, for reverification, the date employment authorization expires. When the receipt expires, the worker must show the employer either an unexpired Form I-766, Employment Authorization Document (EAD), or a combination of a List B document and a List C unrestricted Social Security card.
- An unexpired Form I-94 containing a class of admission of DT issued between Feb. 24, 2022, and Sept. 30, 2023, and indicates Ukraine as the country of citizenship. Employees may present this Lisa A receipt to show evidence of identity and employment authorization. This receipt is valid for 90 days from date of hire or, for reverification, the date employment authorization expires. When the receipt expires, the worker must show the employer either an unexpired Form I-766, Employment Authorization Document (EAD), or a combination of a List B document and a List C unrestricted Social Security card.
- An unexpired Form I-94 containing a class of admission of PAR and indicates Afghanistan as the country of citizenship on the document may present it as an acceptable List A receipt that temporarily shows identity and work authorization for Form I-9. This receipt is valid for 90 days from date of hire or, for reverification, the date employment authorization expires. When the receipt expires, the worker must show the employer either an unexpired Form I-766, Employment Authorization Document (EAD), or a combination of a List B document and a List C unrestricted Social Security card.
If your employer does not accept a valid receipt for I-9 purposes, contact IER for assistance.
Q. If a worker records a USCIS or A Number on the Form I-9, does an employer need to see, or can it ask for, a document with that number?
A. No. If a worker records a USCIS or A Number, or an Admission Number, in Section 1 of the Form I-9, an employer is not allowed to ask or see a specific document with that number or specify which documentation a worker may present for Section 2, based on the worker's citizenship status. Asking an employee for proof of citizenship or immigration status in the process of verifying a worker's employment authorization could violate the law that IER enforces. During both initial verification and reverification, a worker may choose which documentation to present from the List of Acceptable Documents.
Q. My new employer is requiring me to provide an expiration date for my status as a refugee in Section 1 of the Form I-9. Do I have to provide an expiration date in Section 1?
A. No. The Form I-9 instructions direct noncitizens authorized to work whose employment authorization does not expire, such as workers granted asylum or refugee status, and certain citizens of the Federated States of Micronesia, the Republic of the Marshall Islands and Palau, to enter "N/A" on the line calling for an expiration date for the worker’s employment authorization. In addition, if someone granted asylum or refugee status chooses to show a driver's license and unrestricted Social Security card for Section 2, these documents are not subject to reverification under Form I-9 rules. Contact IER if you have asylum or refugee status and your employer is requiring that you provide an expiration date in Section 1.
Q. May an employer ask an employee to present a Social Security card for payroll (and not I-9) purposes?
A. Yes. Although an employer cannot ask a worker to present a particular document for employment eligibility verification, an employer may request a Social Security card for payroll purposes. However, IER recommends certain practices to avoid confusion about whether the request is for employment eligibility verification purposes: (1) separate the Form I-9 process from other processes involving document requests; and (2) communicate the basis for each document request. For example, explain whether the document request is for payroll or another purpose. Workers who believe an employer is requesting a specific document for employment eligibility verification purposes may allege discrimination in violation of the INA's anti-discrimination provision.
Q. Does an employer need to see a worker's Social Security card to make sure that the Social Security number completed in Section 1 is correct?
A. No. Recording a Social Security number in Section 1 of the Form I-9 is optional unless the employer uses E-Verify. If an employer uses E-Verify, E-Verify rules require the worker to fill in the Social Security number field. An employer still should not ask to review the card to verify it for Section 1 purposes and requesting more or different or specific documentation than required to complete the Form I-9 based on a worker’s citizenship status or national origin may violate the anti-discrimination provision of the INA. Note that if a worker is still waiting for a Social Security number when completing the Form I-9 and the employer uses E-Verify, E-Verify instructions direct the employer to wait to create the E-Verify case until the worker is issued a Social Security number. As long as the worker has otherwise completed the Form I-9, the worker continues working while awaiting the Social Security number. For further guidance, contact IER.
Q. My employer asked me to verify my employment eligibility by showing a document issued by the Department of Homeland Security because I am not a U.S. citizen. Is my employer allowed to do this?
A. No. For employment eligibility verification, an employer must allow its workers to choose which documents to show from the Form I-9 Lists of Acceptable Documents, and requesting a specific document or more documents based on a worker’s citizenship status may violate the law the IER enforces. If the documentation reasonably appears to be genuine and to relate to the worker, the law that IER enforces and Form I-9 instructions direct the employer to accept it. If your employer has demanded a specific document from you for I-9 purposes, contact IER.
Q. A job applicant presented an Employment Authorization Document that expires next month. As an employer, I don't want to train the worker without an assurance that the worker will still be employment-authorized in the future. May an employer reject the applicant for employment due to the uncertainty of continued employment authorization?
A. No. Workers with temporary or continuous employment authorization may present documents with future expiration dates. Even if a worker has temporary work authorization, the worker may receive subsequent employment authorization. Therefore, a future expiration date does not necessarily mean that a worker will not be able to work beyond the date on the document presented. The rules for reverifying employment authorization when a worker has shown a temporary employment authorization document are discussed in the Handbook for Employers. The Handbook for Employers also explains that an employer cannot refuse to accept a document because it has a future expiration date. In addition, consideration of a future employment authorization expiration date in determining whether an individual is qualified for a particular job may constitute an unfair immigration-related employment practice in violation of the anti-discrimination provision of the Immigration and Nationality Act.
Q. A worker has presented an employer with a document that looks fake. Can an employer refuse to accept it without violating the anti-discrimination provision?
A. Yes. Under the Immigration and Nationality Act’s employer sanctions provision, an employer cannot accept a document that does not reasonably appear to be genuine or to relate to the person. However, an employer is not allowed to apply different levels of scrutiny to documents based on a worker's citizenship, immigration status, or national origin, and rejecting a valid document based on a worker’s citizenship status or national origin may violate the law that IER enforces. An employer may ask the worker for different documentation if the request is based on the fact that the first document presented does not reasonably appear to be genuine. If the employer rejects a document and does not provide the worker an opportunity to produce a different valid document, the worker may allege unfair documentary practices under the law that IER enforces. In addition, contacting IER for assistance before rejecting a document solely because the employer is unfamiliar with the type of document being presented can help an employer avoid a potential claim of unfair documentary practices. For further assistance, contact IER.
Reverification Issues
Q. A worker's DHS-issued employment authorization document expired and the worker wants to show a Social Security card for reverification. Does the employer need to see a current DHS document?
A. No. For reverification, the Form I-9 rules require a worker to present an unexpired List A or List C document of the worker's choice. Therefore, if a worker presents an unrestricted Social Security card upon reverification, the worker does not need to present a current DHS document even if he or she presented a DHS document for initial employment eligibility verification. However, if a worker presents a restricted Social Security card (stating "not valid for employment," "valid for work only with INS authorization," or "valid for work only with DHS authorization"), the employer is not allowed to accept the restricted Social Security card since it is not an acceptable I-9 document. In that case, the employer may ask the worker to present another unexpired List A or List C document of the worker's choice. Note that List B documents are not required for reverification. For questions about the acceptability of documents for reverification, contact IER.
Q. Does an employer need to reverify the work authorization of lawful permanent residents who produce a "green card" with a future expiration date?
A. No. Lawful permanent residents who produce an unexpired Permanent Resident Card (Form I-551 or "green card") are not subject to reverification, even if the Form I-551 lists a future expiration date. Reverifying Permanent Resident Cards may constitute a violation of the anti-discrimination provision of the INA. For questions about how to conduct reverification in a nondiscriminatory manner, contact IER.
Q. If I am a lawful permanent resident, do I need to show my employer a new unexpired Permanent Resident Card when the card expires?
A. No. Form I-9 rules instruct employers not to reverify a lawful permanent resident who initially presented an unexpired Permanent Resident Card, even when the card expires. Employers that request documents when not required, based on a worker’s citizenship status, may violate the INA’s anti-discrimination provision. If your employer reverifies your employment eligibility after you presented an unexpired Permanent Resident Card, contact IER.
Temporary Protected Status ("TPS")
Q. I have Temporary Protected Status ("TPS"), and the Department of Homeland Security extended my Employment Authorization Document ("EAD"). My employer insists that I show an unexpired card to continue working. Do I need to?
A. No. Your TPS EAD may be extended past its original expiration date in a few ways. Sometimes, the government extends TPS EADs through the Federal Register, and the Federal Register notice will tell you whether your EAD automatically has a new expiration date. Go to www.uscis.gov/tps for information on TPS for your country and the most recent Federal Register notice. If the Federal Register notice automatically extends your EAD, your EAD is valid beyond its expiration date and you do not have to show that you have applied for a new EAD to keep working.
If the government does not automatically extend your EAD through the Federal Register notice but you have applied to renew your TPS EAD, you may be able to keep working after the expiration date on your EAD. For a period of time after your EAD expiration date, you can continue working by showing your employer your TPS EAD with the I-797C receipt notice (showing that the government received your EAD renewal application).
Your TPS might be extended in other ways and you can get more information on EAD automatic extensions in the Handbook for Employers M-274 on completing the Form I-9. You can also call IER for more information.
E-Verify
Q. When my employer created an E-Verify case with my information, I received a Tentative Nonconfirmation (also known as a mismatch) and notified my employer that I have decided to take action to resolve the mismatch. I have work authorization but my employer told me that I can start working only after I resolve my mismatch. Is my employer allowed to do this?
A. No. E-Verify rules prohibit an employer from firing a worker, suspending a worker, or limiting a worker’s hours because the worker chooses to take action to resolve the mismatch, as long as the status in E-Verify remains a mismatch. Employers that allow only some workers to work while resolving a mismatch depending upon the worker's citizenship status or national origin may be violating the anti-discrimination provision of the Immigration Nationality Act. If your employer has not allowed you to work because you are resolving your mismatch, contact IER.
Q. Is an employer that participates in E-Verify allowed to terminate or suspend an employee who decides to resolve a Tentative Nonconfirmation (also known as a mismatch), based on the mismatch?
A. No. An E-Verify mismatch does not necessarily mean the worker is not authorized to work. The E-Verify law and rules do not permit an employer to take adverse action against the worker because the worker is resolving the mismatch, including terminating or suspending the worker. E-Verify rules require the employer to await a final resolution from E-Verify, even if such final resolution takes longer than the typical period.
Terminating an individual based on the assumption that he or she is not authorized to work based only on a mismatch may violate the anti-discrimination provision of the Immigration Nationality Act. For more information, including employer best practices on avoiding discrimination in the use of E-Verify, see IER's E-Verify guidance for employers here.
Social Security Number/Name Issues
Q. If a worker's name and Social Security number don't match the Social Security Administration's (SSA) records, should the employer automatically conclude that the worker is not authorized to work?
A. No. Just because there is a mismatch between a worker's name or Social Security number and another entity's records, including Social Security Administration records, employers should not assume that the worker lacks employment authorization. There are many possible reasons for a mismatch, including:
1. An unreported name change (e.g., due to marriage, divorce or other reasons) after the Social Security number was issued;
2. Typographical errors;
3. Inaccurate or incomplete employer records;
4. Identity theft;
5. An error based on hyphenated or multiple surnames; and
6. A change in citizenship status that has not been reported to the Social Security Administration.
As the Social Security Administration states in its Employer Correction Request letter, an employer should not use the mismatch by itself as the reason for taking any adverse employment action against any worker. Doing so may violate the anti-discrimination provision of the INA at 8 U.S.C. § 1324b. For more information, including steps employers can take upon receipt of a Social Security name/number mismatch, see IER's guidance for employers on Social Security name/number no-matches here.
Citizenship Status Discrimination
Q. I was rejected for a job because I am not a U.S. citizen. Is this citizenship status discrimination?
A. Under the anti-discrimination provision of the Immigration and Nationality Act, employers are not allowed to limit job applicants or hires to U.S. citizens unless they are required to do so by federal, state, or local laws or federal contracts that require specific positions to be filled only by U.S. citizens. If a job applicant is discouraged or rejected from employment based on their citizenship status, the employer may be committing citizenship status discrimination in violation of the anti-discrimination provision of the Immigration and Nationality Act. If you believe that your application may have been improperly rejected because you are not a U.S. citizen, contact IER.
Q. I was rejected for a job because the employer only likes to hire workers on temporary visas. Is the employer allowed to do this?
A. No. Failing to consider or hire qualified workers protected from citizenship status discrimination (U.S. citizens, U.S. nationals, recent lawful permanent residents, and people granted asylum or refugee status) based on their citizenship status violates Immigration and Nationality Act's anti-discrimination provision. Employers might violate this law even if the employer follows the rules for the temporary employment-based visa programs, if the employer makes its hiring decision based on a worker’s citizenship status. Contact IER if you believe an employer discriminated against you based on your citizenship status.
Q. May I ask applicants for citizenship or immigration status information?
A. Generally, an employer may ask job applicants if they have the legal right to work in the United States and if they will need sponsorship for an employment visa. Asking for specific citizenship status information for purposes unrelated to any recruitment, hiring, or firing decision is unlikely to violate the law IER enforces. However, unsuccessful applicants who are subjected to these types of questions may believe that the employer based its decision on the applicant’s citizenship status (which includes immigration status). Therefore, it is a best practice to avoid asking applicants for this information.
Q. If my company engages in activity regulated by the International Traffic in Arms Regulations (ITAR) or the Export Administration Regulations (EAR), does the ITAR or the EAR require me to hire only U.S. citizens?
A. No. Nothing under the ITAR or the EAR requires or allows an employer to limit jobs to U.S. citizens. However, the ITAR or the EAR may require a company to obtain authorization if certain employees require access to technology that is regulated under the ITAR or the EAR, and such requirements may affect these employees’ scope of employment. In particular, a company may need to obtain authorization to release covered technology to employees who are not U.S. citizens, U.S. nationals, lawful permanent residents, or people granted asylum or refugee status. Contact the Department of State’s Directorate of Defense Trade Controls for more information on requirements under the ITAR and the Department of Commerce’s Bureau of Industry and Security for more information on deemed export requirements under the EAR. See IER's fact sheet for more information.
National Origin Discrimination
Q. I applied for a job with an employer that only has four employees, and it refused to hire me due to my national origin. Is that employment discrimination?
A. Yes. The anti-discrimination provision of the Immigration Nationality Act prohibits employers with four to 14 employees from discriminating in hiring based on national origin, and Title VII of the Civil Rights Act (enforced by the Equal Employment Opportunity Commission (EEOC)) prohibits employers with 15 or more employees from discriminating in hiring based on national origin. If an employer has rejected your employment application based on your national origin, contact IER to determine whether IER or the EEOC has jurisdiction to assist you.
Q. I applied for a job with an employer that only has four employees and was informed that to be hired I would need to speak English without a foreign accent. Is this legal?
A. A small employer (four to 14 employees) that rejects an applicant because of a foreign accent may violate the anti-discrimination provision of the Immigration Nationality Act. Such conduct by a larger employer (15 or more employees) may violate Title VII of the 1964 Civil Rights Act, which is enforced by the Equal Employment Opportunity Commission. More information about national origin discrimination is available here.
Name Change
Q. My employee presented Form I-9 documentation in which the employee's name differs from the name they listed on their Form I-9. Can I accept the documentation?
A. Yes, as long as the documentation reasonably appears to be genuine and the relate to your employee. An employee might have different names on the documentation they use to prove their identity or work authorization for the Form I-9. For example, people might change their first, last, or full name for various reasons, such as naturalization, adoption, marriage, or gender transition. Employers must treat employees who have name changes in a nondiscriminatory way, regardless of the reason for the name changes.
Q. How should I, as an employer, handle a situation in which an employee's Form I-9 documentation differs from the name they listed on their Form I-9?
A. Employers should ask employees the reason for the difference in names. USCIS also elaborates on how to handle this depending on the situation (see chart below). Ultimately, an employer should accept the documentation as long as it reasonably appears to be genuine and to relate to the employee. USCIS also explains that if your employee voluntarily provides additional documentation to explain their name change, you may keep a copy of the extra documentation with a memo explaining the name discrepancy. This guidance also applies if an employer uses E-Verify. Any additional documentation your employee chooses to provide to explain their name change doesn’t need to be from the Lists of Acceptable Documents, but this extra documentation might support the documents presented to complete the Form I-9. For example, an employee could choose to show an employer a court record reflecting a name change, even though that court record is not a document someone can use to complete Section 2 of the Form I-9.
Employers must treat employees who have name changes in a nondiscriminatory way, regardless of the reason for the name changes.
USCIS Chart: Examining Documentation
If your employee | Then you should | Tips |
Provides documentation that reasonably appears to be genuine, relates to the employee, and is on the Lists of Acceptable Documents |
Accept the documentation. | |
Provides a document that does not reasonably appear to be genuine or relate to the employee or is not on the Lists of Acceptable Documents | Reject the document and ask your employee to provide other document(s) that satisfy Form I-9 requirements. | The standard is reasonableness. You are not expected to be a document expert. |
Writes more than one last name in Section 1, but presents a document from the List of Acceptable Documents that has only one of those last names | Ask your employee the reason for the difference in the names. If the document reasonably appears to be genuine and to relate to the individual, you may accept the document. | Attach a memo to Form I-9 explaining the discrepancy. |
Presents a document from the List of Acceptable Documents in which his or her name is spelled slightly differently than the name he or she wrote in Section 1 | Ask your employee the reason for the difference in spelling. If it reasonably appears to be genuine and to relate to the individual, you may accept the document. | Ask your employee to use his or her full legal name in Section 1. Ask him or her to do one of the following: correct Form I-9 and initial the change; provide a different document with the correct spelling; provide you a corrected document. |
Provides a document in which the name the employee wrote in Section 1 is completely or substantially different from the name on the document |
Ask the employee the reason for the name change If your employee maintains that the name in Section 1 is his or her legal name and you are satisfied that the document reasonably appears to relate to the employee, you may accept the document. |
Attach a memo to the Form I-9 explaining the discrepancy. If the employee voluntarily provides proof of a name change, you may keep a copy of it with the memo. |
Provides a document that does not reasonably appear to be genuine and/or to relate to the individual or if he or she cannot present other documents to satisfy the requirements of Form I-9 | You may terminate employment. |
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