- Written by Susannah Ashton
The Federal Immigration Nationality Act and Form I-9 Requirements
The Immigration Nationality Act (INA) makes it illegal for employers to knowingly hire persons who are not legally present in the United States. Employers who do so are subject to fines and possible imprisonment.
In order to ensure that all employees are legally present in the United States, and thus eligible for employment, they are required to submit a Form I-9 to verify their identity and authorization for employment. When submitting such form, employees are required to provide either one document from List A (e.g., passport) or 2 documents: a List B verifying identity (e.g., driver’s license) and a List C verifying employment eligibility (e.g., social security card). If an employee is unable to provide both a List B and a List C document, he or she is not considered eligible to work in the United States.
California AB 60 Licenses
On January 1, 2015, the California Department of Motor Vehicles began issuing a new type of driver’s license to applicants who cannot submit satisfactory proof of legal presence in the United States, but who otherwise meet all qualifications for the issuance of a driver’s license. Such a license, termed an “AB 60” driver’s license contains a mark stating “Not for Federal Identification.” This designation means that an AB 60 License is not compliant with the REAL ID Act in some way. However, the REAL ID Act states that this designation should not raise inferences or assumptions regarding an individual’s citizenship or immigration status, and further, State law precludes discrimination against a person holding an AB 60 License.
United States Guidance on AB 60 Licenses as Acceptable List B Documents
On May 19, 2015, the United States Citizenship and Immigration Services (USCIS) recently issued guidance on the applicability of AB 60 Licenses for Form I-9 purposes. On June 4, 2015, various grower associations and legal representatives in the field, along with The Saqui Law Group, issued an Industry Announcement providing guidance to employers in handling AB 60 Licenses.
- Written by Industry Alert: AB 60 Update
Industry Alert: AB 60 Update
U.S. Citizenship and Immigration Services on May 19 posted on its website guidance for employers of employees who present a driver’s license issued by a state to persons who cannot submit satisfactory proof of legal presence in the United States. In sum, the guidance states that such a license:
• Must be accepted in the Form I-9 employment eligibility verification process as a List B document establishing identity if it otherwise meets the requirements of a List B document (i.e., it contains a photo of or information identifying the individual presenting it) and the employer determines it reasonably appears to be genuine and to relate to that individual.
• Does not, in and of itself, support a conclusion that the employer had actual or constructive knowledge (i.e., knew or should have known) that the employee presenting it is not employment authorized (if that is in fact the case).
In addition, the guidance notes that: