Summer’s Hottest DOJ I-9 Settlements: Don’t Think Your I-9 Practices Are Discriminatory? Think Again.
The mere suggestion that employees should bring a particular document to complete the Form I-9, or confusion over how to handle expiring documents for foreign nationals could get employers in a lot of hot water (not to mention heavy fines). When Form I-9 functions are distributed to many people, it becomes even more of a challenge for employers to ensure that all employees involved have been trained and are not, even unintentionally, engaging in discriminatory practices.
The Immigration Reform and Control Act (IRCA) added employer sanction provisions to the Immigration and Nationality Act (INA) in 1986. The sanctions added in INA 274A make it unlawful for employers to knowingly hire and to continue to employ unauthorized workers who are unable to successfully demonstrate U.S. work authorization (the Form I-9) . Importantly, INA 274B also requires that, in their efforts to ensure that their employees are authorized, employers do not discriminate against qualified, work authorized foreign nationals.
The Department of Justice (DOJ) Office of Special Counsel (OSC) is responsible for ensuring that employers comply with the nondiscrimination provisions of the Immigration and Nationality Act 274B and initiates investigations based on complaints received as well as data trends received through E-Verify entries.
The most prevalent forms of discrimination under INA 274B occurs when employers:
Restrict hiring to only USCs when not required to do so by other law or Federal Contract:
This August, the Justice Department fined Travel Management Company $22,000 for making it their practice only to hire U.S. Citizens.
Require (or even recommend) specific documentation from employees (especially foreign nationals):
This summer the Justice Department fined United Continental and Select Staffing, $215,000 and $230,000 respectively for being overzealous in their efforts to ensure that foreign national employees were work authorized by requesting, or accepting, additional documentation to prove work authorization beyond what was required to complete the Form I-9.
Require a Lawful Permanent Resident to present a copy of their new Permanent Resident Card when the old one expires.
This summer ,the Justice Department fined employers Culinaire and Isabella Geriatric Center $20,460 and $14,500 respectively for requiring employees who had presented a Permanent Resident Card to prove work authorization, to provide their new card for reverification of employment authorization when the previous card expired. Reverification is only required when work authorization expires. Work Authorization never expires for Lawful Permanent Residents, therefore requiring the new card and reverifying the employee is considered a discriminatory practice ( document abuse)
Prohibited Practice For Form I-9
It is easy for a well-intentioned employer to suggest to a foreign national employee that they “bring their Green Card for the Form I-9.” To suggest any document, however, is a prohibited discriminatory practice, which could get the employers in the same trouble as those employers who found themselves paying hefty fines to settle with the OSC this summer.
To help avoid the same pitfalls, employers must be sure that individuals involved in hiring and/ or completing the Form I-9 have received comprehensive training that explains that simply obtaining a correct and complete Form I-9 is not sufficient to comply with I-9 rules. Employers must be wary of discriminatory practices that could occur as soon as a person applies and throughout employment. To learn more or to schedule a training class for your HR team, contact the Maggio Kattar Attorney you work with, or follow us, for more information from our free quarterly Immigration Compliance Series webinars.