New Federal Guidance on Form I-9 and AB 60 Driver’s Licenses

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).
  • Under a regulation of the Department of Homeland Security, which houses USCIS, whether an employer is considered to have actual or constructive knowledge that an employee lacks employment authorization is determined on a case-by-case basis and depends upon all of the facts and variables specific to the individual case.

After careful review by several legal experts, it is clear the current federal government does not expect an employer to inquire into why an employee claiming employment eligibility has such a license-at least where the employer has no other reason to doubt the employee’s claim.

This conclusion provides some sense of relief to employers in California who face legal liability for discriminating against a person because the person holds or presents an “AB 60 driver’s license,” so called because of the 2013 California Assembly bill that authorized the issuance of this type of driver’s license. Legislation in 2014 makes this type of discrimination illegal as a violation of the Fair Employment and Housing Act.

 
The USCIS guidance can be accessed at www.uscis.gov/i-9-central. In the left menu, click “I-9 Central Questions & Answers.” On the next page that opens, click “List B Documents – Identity.” The first seven FAQs are the pertinent ones.

Source: California Farm Labor Contractor Association

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