November 04, 2015

Employers: Beware of Demanding Green Card Proof!

Here’s a typical question we get from clients who are permanent residents of the United States:

I lost my green card and applied for a replacement and have an I-551 stamp on my passport. My stamp expires October 15, 2015. But my employer says that the stamp I-551 is not enough to prove I can work and insists I need to provide an unexpired green card. What can I do?

Our answer may be surprising to many employers and it’s simply this:

You may have a claim of discrimination against your employer. As a permanent resident, your work authorization does not expire and you are legally authorized to work, even if your green card has expired.

To prove your work eligibility for a new job, you only need to present any of the acceptable documents listed on the List A or on List B and C of the I-9 form. It is your choice which documents you present. You are not required to show your green card to your employer if you have other proof of work authorization.

If your employer insists on proof of your green card, rather than accepting other documents such as your social security card and driver’s license, then it may be violating anti-discrimination laws. You should contact the Office Of Special Counsel For Immigration-Related Unfair Employment Practices of the U.S. Department of Justice (OSC) for further assistance.

Most employers who fall into the trap of demanding green cards from new or current employees are well-intentioned. They simply want to comply with government employment eligibility verification rules (“I-9 rules”). However, I-9 rules do not require employers to get proof of an unexpired green card from permanent residents. And, an anti-discrimination rule actually forbids employers from demanding specific I-9 documents from employees. Violation of this rule is called “document abuse.” Many companies, large and small, have paid large penalties and back pay awards for committing document abuse.

Employers should follow these three best practices to avoid document abuse charges:

  1. If a current employee’s green card has expired, do not re-verify work eligibility or update the I-9 form. Employment authorization does not terminate with the expiration of the green card.
  2. If a new employee indicates he or she is a permanent resident, do not require a copy of the green card. Like a U.S. citizen, the employee can give you any document that is approved on the I-9 list of documents.
  3. If a current employee used an employment authorization document (EAD) which has since expired, do not require a new EAD as proof of continued work authorization. Instead, let the employee give you any document that is approved on the I-9 list.

Immigration laws governing employment are complex. To steer clear of a document abuse claim, companies must educate their managers responsible for completing I-9 forms about immigration-related anti-discrimination rules.

This information is provided as an educational service by attorney Ann Massey Badmus of Cowles & Thompson. If you would like additional information or have questions about complex immigration rules that challenge your business, you are invited to call 214-672-2161 or email abadmus@cowlesthompson.com.