As a result of AB 60 legislation, the Department of Motor Vehicles began issuing driver’s licenses in January of this year to persons who are unable to submit satisfactory proof of legal presence in the United States. To qualify, the undocumented persons must provide satisfactory proof of identity and California residency and meet all other licensing requirements.
There has been uncertainty regarding the use of these AB 60 licenses for I-9 workplace eligibility purposes. The legislation states that the license should bear a notice that it “does not establish eligibility for employment.”
Moreover, the AB 60 driver’s license contains wording on the front that states “Federal Limits Apply.” On the back of the AB 60 license it states the following: “This card is not acceptable for official federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits.”
However, the United States Citizenship and Immigration Services Office (USCIS) has released two FAQ that specifically address whether this type of special license may be an acceptable List B identity document for Form I-9 purposes:
Is a driver’s license with the notation “Do not use for Federal use” an acceptable List B document?
The notation “Not for Federal Identification” on a state-issued driver’s license means that the driver’s license containing it does not meet Real ID Act requirements. However, the driver’s license may be an acceptable List B document if it contains a photograph or all of the identifying information required by Form I-9 regulation, i.e., name, date of birth, sex, height, color of eyes, and address.
Are Driver Authorization and Driver Privilege Cards acceptable List B documents?
To determine whether a Driver Authorization or Driver Privilege Card is acceptable for Form I-9, the employer must decide whether the card meets the description of acceptable identity documents in the regulations at 8 CFR 274a.2(b)(b)(1)(v)(B). These cards may fall under the List B document described as: “A driver’s license or identification card containing a photograph, issued by a state . . . or outlying possession of the United States. If the driver’s license or identification card does not contain a photograph, identifying information shall be included such as: name, date of birth, sex, height, color of eyes, and address.” Another possible List B document is described in the regulations as: “Identification card issued by federal, state, or local government agencies or entities provided that it contains a photograph or information such as: name, date of birth, gender, height, eye color, and address.
We cannot provide advice regarding whether a particular document is acceptable for Form I-9. If the employer decides to accept the List B document, the employer must also examine a List C document establishing employment authorization. In addition to the Form I-9 paperwork requirements, employers should be mindful of the laws prohibiting the hiring or continuing to employ an individual if the employer has actual or constructive knowledge that the employee is unauthorized to work.
Note: A List B document alone is insufficient to establish eligibility for employment. Instead, the worker must present acceptable, unexpired documentation from both List B (Documents that Establish Identity) and List C (Documents that Establish Employment Authorization). The Form I-9 contains instructions and also contains the USCIS List of Acceptable Documents.
Employers in California are cautioned that it is unlawful to discriminate against individuals based on the use of the AB 60 license. If an employee can provide appropriate documentation that verifies eligibility for employment, you cannot discriminate against the employee just because at some point he or she showed you an AB 60 license.
Employers with any questions regarding a worker’s eligibility and whether to accept a particular document for I-9 purposes should consult legal counsel. This is a new and evolving area of the law.
CalChamber members can visit the HR Library’s I-9 Form: Verifying Eligibility section for more information. Not a member? Learn how HRCalifornia can help you.