I-9 Myths and Truths About Asylees and Refugees
Yesterday, October 22, 2012, the Department of Justice’s Civil Rights Division Office of Special Counsel (OSC) offered a webinar for employers on issues related to employment discrimination of Asylee and Refugee workers. If you missed the webinar, no need to worry just yet. OSC provides many repeat webinars for workers and employers every month.
No matter how many OSC webinars I’ve attended, I always learn something new each time. The OSC attorneys who hosted the latest webinar answered many questions surrounding Asylees and Refugees. Many employers may be wondering why there would be a special webinar dedicated to this group of workers. To be frank, Ayslees and Refugees are provided special status in the U.S. precisely because of their unique life situations. While employers need not become legal experts, nowadays, it’s certainly very convenient to have legal experts on call, particularly in this area of law.
Read on to find out if your organization is equipped to properly manage the employment eligibility process for Asylees or Refugees workers:
1. True or False? The OSC reviews four types of employment discrimination: a) Citizenship, b) National Origin, c) Document Abuse, and d) Retaliation or Intimidation.
True. In pursuing employment discrimination claims and investigations based on citizenship status, Asylees and Refugees are considered a protected class of workers, in addition to U.S. Citizens and Legal Permanent Residents.
2. True or False? Employers who have federal contracts may require all of its new hires working under the federal contract project to be U.S. citizens or Legal Permanent Residents.
False. According to the OSC, federally-contracted employers may not require all new hires working under that federal contract to be U.S. citizens or Legal Permanent Residents unless there are specific restrictions in the federal contract. Absent federal, state or local laws, a federal contract lacking any specific citizenship or residence restriction will not shield an employer from the danger of a charge of employment discrimination. This means all other workers, including Asylees and Refugees, who can provide valid identity and work authorization documents, are eligible to work.
3. True or False? In Section 1 of the Form I-9, if a Refugee or Asylee checks the attestation box that they “are an alien authorized to work,” after inputting their A or USCIS number, the expiration date should be indicated as “N/A” or “not applicable.”
4. True or False? A Refugee may present a specially stamped I-94 document to prove identity and work authorization (List A document) but must be reverified in 90 days to prove identity and work authorization again.
True. Although a Refugee’s work authorization status does not necessarily expire, the Refugee Receipt Rule dictates that the I-94 document, if presented as a List A document, must be reverified again in 90 days to demonstrate both identity and work authorization. See more official details here.
5. True or False? An Asylee or Refugee may not begin work until they obtain a number from the Social Security Administration.
False. So long as Form I-9 employment eligibility has been verified, Asylees and Refugees are allowed to work without first presenting a Social Security number. E-Verify case initiation, if applicable, should be made after the social security number has been obtained.
6. True or False? Asylees may present a specially stamped I-94 document to prove identity and work authorization (List A document) but must be reverified in 90 days to prove identity and work authorization again.
False. This statement applies only to Refugees (see item 4). Rather, Asylees may present their specially stamped I-94 document as a valid List C document, demonstrating work authorization issued by the Department of Homeland Security. This means a List B document proving identity must also be presented at the same time. Reverification after 90 days is not necessary according to both USCIS and OSC.
7. True or False? In the wake of I-94 automation, Asylees and Refugees will no longer be able to provide an I-94 document.
(Stay tuned!) USCIS previously indicated earlier in the year it “won’t be changing the way cases work for Asylees and Refugees” in response to a query from the public. However, it’s unclear if this remains the status quo. Until we hear further guidance from CBP, USCIS or even OSC, we won’t know for certain. …Originally published by LawLogix Group Inc Reprinted by permission.
Ann Cun is a U.S. based immigration attorney who has helped companies in the technology, science, business, sports, entertainment and arts fields secure complex work visas for their employees. With more than a decade of experience as a paralegal and attorney, Ms. Cun possesses a stellar record of success. Her legal expertise also includes conducting internal I-9 audits for companies and developing I-9 compliant strategies and solutions. She is a graduate of UCLA and UC Hastings School of Law and has been invited to speak by the Bar Association of San Francisco and the American Immigration Lawyers Association on U.S. immigration related topics, as well as other international conferences. Ms. Cun is a contributing author and currently serves as Counsel and Principal Editor for LawLogix Group.