In this article, attorney Ekaterina Powell from our office provides a summary of the key issues and analyzes the best practices for employers to follow in their immigration compliance efforts.
The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) of the Department of Justice protects the rights of individuals from employment discrimination based upon citizenship or immigration status and national origin, unfair documentary practices when verifying the employment eligibility of employees, and retaliation. OSC enforces the anti-discriminatory provisions of the Immigration and Nationality Act (INA). Individuals discriminated against may file charges with OSC and be awarded back pay and reinstatement, among other remedies.
The INA prohibits employers from knowingly hiring undocumented workers and requires employers to verify their employees’ work eligibility as specified on the I-9 form. The employees must present documentation to their employers to establish both identity and employment eligibility. The I-9 form must be completed for every employee, regardless of national origin, and whether or not the employee is a U.S. citizen.
An employer’s failure to verify the identity and employment eligibility of new employees by completing the I-9 Form violates federal immigration law and may lead to severe civil and criminal penalties.
However, worksite enforcement audits are not the only problems that employers should be concerned about. The employees, including work authorized individuals and undocumented aliens, may also bring private actions to recover damages for violation of anti-discrimination provisions of the INA and may file charges with the agencies enforcing these laws. It is therefore critical for all employers to familiarize themselves with the proper immigration compliance procedures.
Ensuring compliance with the proper employment eligibility verification procedures can be rather complex as it requires understanding of not only the immigration laws but also anti-discriminatory provisions and the employment law.
Even though Human Resources personnel are not expected to be experts in immigration law, the companies are required to follow proper immigration compliance procedures. If you have any concerns regarding compliance measures, if you do not understand your obligations related to completing and maintaining I-9 forms, or if your company has a worksite enforcement audit, seek competent legal assistance.
Employer-Prohibited Conduct under the INA
• Citizenship or immigration status discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with four or more employees, subject to certain exceptions. Employers may not treat individuals differently because they are, or are not, U.S. citizens or work authorized individuals.
• National origin discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with more than three and fewer than 15 employees. Employers may not treat individuals differently because of their place of birth, country of origin, ancestry, native language, accent or because they are perceived as looking or sounding “foreign.”
• Unfair documentary practices related to verifying the employment eligibility of employees. Employers may not, on the basis of citizenship status or national origin, request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents or specify certain documents over others.
• Retaliation. Individuals who file charges with OSC, who cooperate with an OSC investigation, who contest action that may constitute unfair documentary practices or discrimination based upon citizenship status or national origin, or who otherwise assert their rights under the INA’s anti-discrimination provision are protected from retaliation.
What the Employers Should Do to Improve their Immigration Compliance System
Below are few examples of immigration compliance measures that are helpful for employers to implement.
• Avoid using “U.S. citizen-only” or “green card-only” language in job postings. Such hiring policy is discriminatory except when required by law, regulation, or by government contract.
• Do not request specific documents from the employee. Employers cannot prefer one document over others for purposes of completing the I-9 form. For example, you cannot ask for a green card from a legal permanent resident, as the employee is permitted to present any documents from the list of acceptable documents, such as e.g. state driver’s license and unrestricted social security card.
• Avoid selectively verifying employment eligibility of certain employees based on their national origin or citizenship status.
• In order to avoid any appearance of discrimination, verify work eligibility after you have decided to hire an individual and allow your employee three days to provide the documents.
• Do not reverify lawful permanent residents who produce a green card with a future expiration date.
• Do not reverify identity documents.
• During reverification, do not insist on the document presented initially by the employee. The employee may choose to present any of the acceptable documents to verify continued employment eligibility.
• Do not require employees to provide additional evidence of employment eligibility or more documents than required as this constitutes document abuse and is prohibited under the INA.
• Avoid firing the employees immediately after receiving SSA “no match” letters assuming that the employees are not work-authorized. Discrepancies in social security records may occur due to various valid reasons, such as name change, clerical errors, etc.
• Avoid terminating or suspending employees assuming that they are illegal without providing them with notice and a reasonable opportunity to present valid employment eligibility documents.
Special rules regarding asylees
The individual who has been granted asylum does not need to receive Employment authorization document issued by the DHS in order to be eligible to work. The asylees are authorized to work incident to their status whether or not they have DHS-issued work authorization documents. For purposes of I-9 Forms, that means that asylees may present identity document and their I-94 indicating the person has been granted asylum. Do not reverify employment eligibility of asylees as they are authorized to work in the U.S. indefinitely and avoid creating unnecessary hurdles for such individuals.
Employers should familiarize themselves with the Handbook for Employers for the purposes of Form I-9 available on USCIS website. If you have any questions regarding your obligations, consult with a legal counsel to ensure compliance with the applicable laws and regulations. The team of attorneys from our office will be happy to provide assistance with an I-9 audit or with setting up an effective I-9 compliance system.