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Ask the Hotline | Will I-9 Forms Require New Real ID?

March 26, 2018
 
Question
 
The Massachusetts Registry of Motor Vehicles (RMV) closed last week-end to prepare for changes to licenses. Do you have any more information on it?
 
Answer
 
The Registry indeed closed all of its services over this past weekend
 
The upgrade reflects the federal requirement’s requirement that states comply with the federal Real ID program. There is extensive information online about the law and what it means for driver’s licenses and
passports.
 
The state will begin to issue two types of driver’s licenses. One will have a star in the upper right-hand corner, meaning that it is a federally compliant card. The other will carry the following message across the middle in bold black ink “NOT FOR FEDERAL ID.” 
 
What does the new Real ID program mean for the driver’s license as a Form I-9 identification document?
 
A driver’s license is one of the most common forms of ID for the I-9, which confirms a job applicant’s ability to work in the United States. The U.S. Citizenship and Immigration Services (USCIS) Web site states the following:
 
LIST B DOCUMENTS
 
The documents on List B establish only identity. Employees who choose to present a List B document must also present a document from List C for Section 2. Employees may present one of the following unexpired List B documents:
  • Driver's License
  • Driver's license or identification card issued by a state or outlying territory of the U.S., provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address.
The USCIS makes it clear that the license or state id is sufficient for a List B document. The only question is whether the new statement about “NOT FOR FEDERAL ID” in some way invalidates that type of license from being acceptable for I-9 purposes. 
 
Turning to the USCIS website FAQ, the answer to the Real ID question is set out below in the following three FAQ’s.  
 
Is a state-issued driver's license with the notation "FEDERAL LIMITS APPLY," "NOT ACCEPTABLE FOR OFFICIAL FEDERAL PURPOSES," or other similar notation on the front or back of the license an acceptable List B document?
 
Yes. The notation "FEDERAL LIMITS APPLY," "NOT ACCEPTABLE FOR OFFICIAL FEDERAL PURPOSES" or a similar notation on the front or back of a state-issued driver's license indicates it does not meet the standards for the issuance and production of a compliant card under the REAL ID Act.
 
A driver's license with this type of notation is, however, an acceptable List B document if it contains a photograph or identifying information such as name, date of birth, sex, height, color of eyes, and address. An employer must examine the document presented by its employee and determine whether it meets Form I-9 requirements. If the employer accepts any document, including a state-issued license with a limiting notation, as a List B document, the employer must also examine a List C document establishing employment authorization.
 
If I accept a driver's license that includes the notation "FEDERAL LIMITS APPLY," "NOT ACCEPTABLE FOR OFFICIAL FEDERAL PURPOSES," or other similar notation on the front or back of the license, as a List B identity document will that show I knew or should have known that my employee is not authorized to work? 
 
The fact that an employee presents or an employer accepts as a List B identity document a driver's license that meets Form I-9 requirements but contains "FEDERAL LIMITS APPLY," "NOT ACCEPTABLE FOR OFFICIAL FEDERAL PURPOSES," or other similar notation on the front or back of the license, 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 an employee is not employment authorized.
 
Under DHS regulations (8 CFR 274a.1(l)), whether an employer is considered to have actual or constructive knowledge that an employee is not authorized to work is determined on a case-by-case basis and depends upon all of the facts and variables specific to the individual case.
 
Under 8 CFR 274a.1(l), a knowing hire violation can include, in addition to actual knowledge of unlawful status, constructive knowledge that may be fairly inferred through notice of certain facts and circumstances, which would lead the employer through the exercise of reasonable care, to know about a certain condition. Knowledge that an employee is unauthorized may not be inferred from an employee's foreign appearance or accent.
 
May I refuse to accept a driver's license that includes the notation "FEDERAL LIMITS APPLY," "NOT ACCEPTABLE FOR OFFICIAL FEDERAL PURPOSES," or other similar notation on the front or back of the license and ask my employee to provide a different document? 
 
No. You must accept any document that satisfies Form I-9 requirements. You may reject a document if it does not reasonably appear to be genuine or to relate to the employee.
 
Rejecting a document that satisfies Form I-9 requirements may constitute illegal discrimination under the Immigration and Nationality Act's anti-discrimination provision or Title VII of the Civil Rights Act of 1964. Employees presenting a driver's license for identification purposes must also present a List C document to show work authorization.
 
Given these three answers, an employer should feel comfortable accepting a license with the NOT FOR FEDERAL ID or related language as long as the other criteria defined above are met. 
 
Please contact the AIM Employer Hotline at 800-470-6277 if you have any questions about this or any other HR related matter.
 
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