Yes. Form I-9 requirements do not distinguish between different types of driver’s licenses or cards. If the license or card reasonably appears to be genuine and to relate to the individual, and otherwise meets Form I-9 requirements (contains a photograph or identifying information such as name, date of birth, sex, height, color of eyes, and address), it should be accepted. 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.
The fact that an employee presents or an employer accepts a List B identity document such as a driver’s license or card that meets Form I-9 requirements but is a license or card issued by a state that does not require evidence of lawful presence in the United States, 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.
March 2017
Log in or Register to save this content for later.