Federal Guidance Clarifies When and How Employers Can Accept California’s New AB 60 Driver’s Licenses from Possibly Unauthorized Workers to Verify Employment Eligibility

Since early 2015, qualified California residents have been able to apply for and receive a driver’s license issued by the Department of Motor Vehicles without proving that their presence in the United States is authorized under federal law. Questions arose as to whether and to what extent a so-called “AB 60 driver’s license” can be accepted by employers in the federal employment eligibility verification or “Form I-9” process. In light of this, United States Citizenship and Immigration Services (USCIS) recently clarified two key points for employers in their acceptance of AB 60 driver’s licenses for Form I-9 purposes.

First, all employers must accept the AB 60 driver’s license as a Form I-9 List B Identity document if the license reasonably appears to be genuine and to relate to the individual. As with all permissible List B driver’s licenses, the AB 60 driver’s license must contain either a photograph or list the individual’s name, date of birth, gender, height, eye color, and address. The AB 60 driver’s license only documents the employee’s identity; California employers must still examine a List C document that establishes employment authorization, such as a Social Security card or birth certificate.

Given that all employers must accept the AB 60 driver’s license if presented during the Form I-9 process, the USCIS guidance clarifies that notations on the face of the license card, such as the phrases “Federal Limits Apply” and “not acceptable for official federal purposes,” are not intended to prevent the use of the AB 60 driver’s license for Form I-9 employment eligibility verification purposes.

Second, the USCIS guidance addresses whether an employer who accepts the AB 60 driver’s license from a possibly unauthorized worker will be deemed to have knowledge that the employee is not authorized to work in the U.S. By way of background, federal law prohibits employers from hiring or continuing to employ an individual with knowledge that the individual is not eligible to work in the U.S. A finding that an employer has actual or constructive knowledge that an individual is not authorized to work is determined on a case-by-case basis and depends upon all the facts and variables specific to the individual case. Knowledge can be inferred from notice of certain facts and circumstances which would lead the employer, through the exercise of reasonable care, to know that an employee is not employment authorized.

At the same time, California and federal anti-discrimination laws make it illegal for employers to take adverse action against individuals because they hold or present an AB 60 driver’s license (or any other document listed on the Form I-9 List of Acceptable Documents). Recognizing that employers are placed in a difficult position because an applicant who uses an AB 60 driver’s license for identification may possibly be an unauthorized worker and, therefore the employer could be accused of having “knowledge” of the unauthorized status, the USCIS guidance clarifies that an employer’s acceptance of an AB 60 driver’s license does not, in and of itself, support a conclusion that the employer has actual or constructive knowledge that an employee is not employment authorized. The USCIS guidance leaves open the possibility, however, that, combined with other suggestive facts, the employee’s presentation of an AB 60 driver’s license could lead to a finding by U.S. Immigration and Customs Enforcement that the employer knew or should have known that the employee was not authorized to work. Before taking any investigatory or adverse action under such circumstances, employers should seek the advice of an attorney.

For further assistance regarding the recent USCIS guidance, please contact any of our California employment lawyers or the firm’s immigration attorneys.