Form I-9 asks employers to do two things at once. You have to confirm that every new hire presents acceptable documents showing identity and employment authorization, and you have to do it without treating anyone differently because of their citizenship, immigration status, or national origin. Many I-9 discrimination problems come from well-meaning HR staff who ask for "a green card" or "your driver's license and Social Security card" because it seems faster.
This guide explains what document abuse is, why the employee gets to choose which documents to present, and how to build a verification process that stays compliant at every location.
The core rule: the employee chooses
The Form I-9 instructions are clear. An employee may present any one document from List A, or one document from List B plus one document from List C. The choice belongs to the employee, not the employer.
That means you can hand the employee the Lists of Acceptable Documents and let them decide. You cannot tell them which document to bring, suggest that one choice is "better," or reject a valid combination because you would have preferred another.
The same applies before the first day of work. When you tell a new hire what to bring for Section 2, point them to the Lists of Acceptable Documents rather than naming specific items. A line such as "bring your passport" in an onboarding email can turn a routine instruction into a problem.
What counts as document abuse
The anti-discrimination provision of the Immigration and Nationality Act prohibits what it calls unfair documentary practices. When done because of a person's citizenship, immigration status, or national origin, the following can be unlawful:
- Specifying documents. Requiring a particular document, such as a Permanent Resident Card from a lawful permanent resident or a U.S. passport from someone who mentions they were born abroad.
- Requesting more or different documents than Form I-9 requires. Asking for a List A document when the employee has already presented a valid List B and List C combination, or asking for both a List A document and a List C document.
- Rejecting documents that reasonably appear genuine. Refusing a document that looks real and relates to the person because of an accent, an unfamiliar name, or a hunch.
- Treating groups differently. Asking only non-citizens, or only people who "look" or "sound" foreign, for extra paperwork or proof of status.
A policy of asking every non-citizen for an immigration document, even applied uniformly, still singles people out based on status.
The "reasonably appears to be genuine" standard
Employers are not expected to be document experts. Your job in Section 2 is to examine the original document (or follow the DHS alternative procedure if you qualify) and decide whether it reasonably appears to be genuine and to relate to the person presenting it.
If it does, accept it. If a document is clearly fake or clearly belongs to someone else, you should not accept it, and you can ask the employee to present other acceptable documents from the lists. What you cannot do is hold some employees to a stricter standard than others, or rely on assumptions about who is likely to present a fraudulent document.
Documents generally must be unexpired. The Form I-9 instructions describe limited situations where a document is treated as automatically extended, and employers should follow those instructions rather than reject a document out of caution.
Receipts are acceptable in specific cases
The instructions allow certain receipts in place of a document for a limited time, such as a receipt showing the employee applied to replace a lost, stolen, or damaged document. When a receipt is acceptable, you must accept it and then follow up to see the actual document before the receipt period ends. Refusing a valid receipt, or insisting on the original document right away, can be an unfair documentary practice.
Section 1 and the Social Security number
In Section 1, the employee attests to their citizenship or immigration status. You should not ask for documents to "prove" that attestation, and you should not question someone's status because of how they look or speak.
Providing a Social Security number in Section 1 is voluntary for most employers. It is required only for employers that participate in E-Verify. Even then, you may not require the employee to show a Social Security card. If they choose a List C document, that is their decision.
Reverification: know what not to reverify
Reverification is another common source of overreach. When an employee's temporary employment authorization expires, you complete Supplement B, and the employee again chooses which acceptable document to present from List A or List C.
Do not reverify:
- U.S. citizens or noncitizen nationals.
- Lawful permanent residents who presented a Permanent Resident Card for Section 2.
- List B identity documents, such as a driver's license, when they expire.
Asking for new documents in any of these situations goes beyond what the form requires.
E-Verify rules sit on top of Form I-9
If you participate in E-Verify, the anti-discrimination rules still apply in full. E-Verify employers must accept only List B documents that contain a photo, but they still cannot require a List A document or specify which document an employee presents. When photo matching applies because an employee chose a document such as a U.S. passport or Permanent Resident Card, you keep a copy of that document. You cannot push employees toward those documents so you can use photo matching.
Who enforces this
The Immigrant and Employee Rights Section (IER) of the Civil Rights Division at the U.S. Department of Justice enforces the anti-discrimination provision of the Immigration and Nationality Act. IER investigates charges of citizenship status discrimination, national origin discrimination, unfair documentary practices, and retaliation. It also offers free guidance for employers, which is worth using when you update your policy.
Building a compliant process
A few practical steps prevent most problems:
- Write it down. Your I-9 policy should state that employees choose their own documents from the Lists of Acceptable Documents.
- Fix your templates. Review offer letters, onboarding emails, and checklists for language that names specific documents.
- Train every completer. Managers and authorized representatives at remote sites need the same training as central HR.
- Be consistent about copies. If you choose to copy documents (outside the situations where copies are required), do it for every employee, not some.
How Clear I-9 helps
Clear I-9 by TRAK guides each employee through Section 1 and presents the full Lists of Acceptable Documents, so the choice stays with the employee. Error checks flag invalid List A and List B plus C combinations and missing receipt follow-ups, and workflows and tracking prompt Supplement B reverification only when it is actually required. Centralized reporting gives HR one consistent view of every location, and electronic signatures keep a clean record of each step.
Want a verification process that is consistent and fair at every location? Request a demo of Clear I-9 and we'll walk you through it.
This article is for general information only and is not legal advice. For guidance on your specific situation, consult qualified employment counsel and the official USCIS resources.