On May 19, 2015, the U.S. Citizenship and Immigration Services posted guidance on its website 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:
- An employer accepting such a license as a List B identity document in the Form I-9 process must (as for all types of List B documents) also examine a List C document establishing the individual’s employment authorization.
- Under a regulation of the Department of Homeland Security (DHS), 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.
The last point above is made in the context of the federal ban against employing or continuing to employ an employee with knowledge that the employee is not eligible to be employed in the U.S. The DHS regulation noted above states that a “knowing hire” violation can be based on either actual knowledge or constructive knowledge of unlawful status. Constructive knowledge is knowledge that may be fairly inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition.
The omission from the guidance of any statement that an employer must do anything other than accept such a license as a List B identity document in the Form I-9 process indicates the 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 should provide 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. A “clean up” bill enacted in 2014 — AB 1660 — declared that type of discrimination to be a violation of the Fair Employment and Housing Act.
The USCIS guidance, in the form of seven “frequently asked questions,” was posted in response to questions posed in a February 6, 2015, letter sent by California Farm Bureau Federation Associate Counsel Carl Borden to Deputy Secretary of Homeland Security Alejandro Mayorkas. That letter was submitted to DHS on behalf of California Farm Bureau Federation, California Fresh Fruit Association, Grower-Shipper Association of Central California, Grower-Shipper Association of Santa Barbara and San Luis Obispo Counties, Ventura County Agricultural Association and Western Growers.
The May 19 reply letter from USCIS Director León Rodriguez noted that the front of an AB 60 license bears the phrase “Federal Limits Apply,” and the back of the license states it “is not acceptable for official federal purposes.” The reply letter stated that Form I-9 use is not one of those official federal purposes; thus an AB 60 driver’s license may be used in the Form I-9 process. The reply letter continued by stating that Mr. Borden’s letter prompted USCIS, “in close cooperation with U.S. Immigration and Customs Enforcement,” to review, revise and augment its online guidance regarding the federal Real ID Act of 2005, which sets standards for state-issued driver’s licenses, and driver’s licenses used in the Form I-9 process.
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