Federal law prohibits individuals or businesses from hiring an independent contractor without verifying their right to work in the United States. The use of official websites, such as .gov, is necessary to ensure compliance with the law. Form I-9 is not required for occasional domestic services, but employers must not knowingly hire someone who is not authorized to work in the US. In most cases, if a company uses a temporary or staffing agency to get workers, those workers are employees of that agency and serve the company as independent contractors.
The agency completes Form I-9 for every worker they provide to the company, as they are considered employees of the agency, not the company. The Immigrant and Employee Rights Section (IER) of the Civil Rights Division of the Department of Justice enforces the anti-discrimination provision of the Immigration and Nationality Act (INA). This law protects people authorized to work from employment discrimination based on citizenship, immigration status, national origin, unfair documentary practices in verifying employment eligibility (Form I-9 and E-Verify), and retaliation. People who believe they have been discriminated against can file charges with the IER and may be entitled to receive retroactive payment and reinstatement, among other resources.
The INA's anti-discrimination provision prohibits employers from discriminating against individuals based on their citizenship or immigration status. It also prohibits employers from retaliating against individuals who file a charge or participate in an investigation. To file a charge with the IER, a payment form is available in several languages and must be filed within 180 days of the alleged discrimination or retaliation. More information about filing a charge can be found here.
Once the IER receives a charge, they will begin an investigation. If they have not filed a complaint with an Administrative Law Judge (ALJ) within 120 days of receiving the accusation, they will send a letter notifying the injured party or authorized representative of their right to file an administrative complaint against the defendant and indicating whether IER is continuing with the investigation. The IER will also notify the defendant of their decision to continue with the investigation. The IER can also file a complaint with an administrative law judge after this 120-day investigation period.
Once a case is filed, pre-trial matters are generally handled in accordance with applicable standards of practice and procedures and involve the presentation of evidence, statements, and pleadings. The decisions of administrative law judges are directly appealable to the appellate courts of the federal circuit. Successful agreements or awards can result in civil penalties, late payments, procurement orders, and precautionary measures to end discriminatory practices. Individuals can also contact IER for help without filing a complaint. The IER has multilingual staff, including lawyers, ready to help workers, employers and the general public who contact them through their worker or employer hotline.
These hotlines provide workers and employers with information about the INA's anti-discrimination provision and allow them to work directly with IER staff to resolve potential immigration-related labor disputes informally and quickly without contested litigation. Workers and employers are encouraged to call these hotlines for help with immigration-related employment issues. Please note that IER cannot provide legal advice or individual legal representation. 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. Form I-9 contains lists of acceptable documents that fall into three categories (see below for additional information on acceptable documents).
A worker can submit documentation from List A (which establishes both identity and permission to work) or a combination of documentation from List B (which establishes identity) and List C (which establishes permission to work). Employers cannot specify what documents they will accept from a worker and must not prevent a person from working because of a document's future expiration date. If you have questions about possible discriminatory practices related to verifying employment eligibility, contact IER for help. Are there any exceptions to this requirement? Yes! In certain cases, employers may be exempt from having to verify an employee's right to work in the US. For example, if an employer hires someone for occasional domestic services such as babysitting or lawn care services, they do not need to complete Form I-9 for that employee. Additionally, if an employer uses a temporary or staffing agency to get workers, those workers are considered employees of that agency rather than employees of the company itself. It is important for employers to understand their obligations under federal law when it comes to verifying an employee's right to work in the US.
Failure to comply with these laws can result in significant fines or other penalties.
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