What are employers’ legal obligations under I‑9 rules and how do they intersect with anti‑discrimination protections for noncitizen workers?

1. The core I‑9 duty: verify identity and work authorization for every new hire

Federal law requires employers to complete and retain a Form I‑9 for each new employee to verify identity and authorization to work in the United States, a duty that applies to citizens and noncitizens alike and is enforced to prevent employment of the unauthorized ^{[1] [2]}. Employers must follow the I‑9’s acceptable-document rules and may not insist on additional or particular documents beyond what the employee chooses to present from the form’s lists; failure to comply risks employer‑sanctions and fines ^{[4] [1]}.

2. The anti‑discrimination overlay: what employers cannot do when administering I‑9s

The INA’s anti‑discrimination provision and related federal civil‑rights laws bar employers from treating applicants or employees differently because of citizenship status or national origin during hiring, firing, recruiting, the Form I‑9 process, and E‑Verify, including “unfair documentary practices” such as demanding more or different documents from some workers ^{[3] [7] [4]}. Agencies that enforce these protections include the DOJ’s Immigrant and Employee Rights Section (IER) and the EEOC; their guidance explicitly warns employers not to ask for documents in Section 1 or to prefer certain documents over others ^{[8] [9] [7]}.

3. How the rules intersect in practice: avoid both under‑ and over‑enforcement

Employers face a balancing act: rigorous I‑9 compliance to avoid IRCA penalties while avoiding selective or intensified scrutiny of noncitizen or foreign‑looking applicants that could constitute discrimination; actions like singling out certain workers for reverification, requiring unlisted documents, or combining I‑9 checks with unrelated compliance hoops have led to DOJ investigations and settlements ^{[2] [6] [10]}. Internal audits and third‑party verifications are permitted, but the employer remains liable for discriminatory practices discovered in audits or for failing to correct I‑9 deficiencies ^[10].

4. Trouble spots and competing legal demands: export controls, remote hiring, and evolving enforcement

Sectors with export‑control or national‑security vetting face real tensions because security compliance sometimes prompts employers to request specific foreign‑passport information or separate screening that can look like citizenship discrimination; DOJ and private‑practice enforcement have penalized employers who improperly merged export‑control questionnaires with I‑9 verification ^[6]. At the same time, technological and policy changes—expanded E‑Verify use and DHS remote‑verification procedures—heighten both compliance burdens and the risk of disparate treatment if applied unevenly across workers ^{[11] [12]}.

5. Enforcement, remedies, and practical steps employers should follow

Enforcement can come through I‑9 audits by ICE, discrimination complaints to DOJ/IER or the EEOC, and civil suits; remedies have included fines, injunctive relief, training, and policy changes, demonstrating that both sanctions for hiring unauthorized workers and anti‑discrimination penalties are real and often concurrent ^{[10] [6] [8]}. Best practices reflected in government guidance are simple in theory: treat all hires identically, accept any valid document combination, avoid document‑specific requests or nationality‑based questioning, separate I‑9/e‑Verify and other vetting, and promptly correct I‑9 errors—while seeking legal counsel in complex cases ^{[4] [6] [1]}.