Questions about I9

[Sergi9 110]

How to Avoid Citizenship Status Documentation And Document Abuse

by Gary Endelman

Sometimes you have to know when to stop. That is not as easy as it sounds. Conscientious employers are well aware that the I-9 cops will be on them like a cheap suit if they hire anyone who does not have permission to work in the United States. So, the thought goes, you can never be too careful. If some proof is good, then more doubtless is better. Right? This is where the best of intentions can create a boatload of unanticipated headaches. Read on friend.

If you have not had the pleasure of reading section 274B (a) (6) of the Immigration and Nationality Act, let me introduce you to its tender mercies:

A person’s or other entity’s request for purposes of satisfying the requirements of section 274A (b) for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual …

An employer simply is not allowed to dictate or select what supporting I-9 documents a job applicant elects to offer up.[1] However, such a request is an unfair employment practice only if accompanied by intent to discriminate.[2] This comes from Section 421 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996- the brainchild of Congressman Sonny Bono. It is otherwise known to us aging Boomers as the “I’ve Got You Babe!” amendment for which we remain eternally grateful.

Interestingly, such “document abuse” will not stand in the absence of such illicit intent solely by virtue of disparate impact. After 1996, we are no longer in strict liability territory and standard notions of intentional discrimination apply.[3] So, for example, if someone lies on their I-9 and works illegally but then becomes legal, they can be fired without exposure for document abuse for violation of the employer’s honesty policy on employment applications.[4] Be aware that document abuse does not depend upon after hiring but can take place before as well.[5] In fact, as Judge Marvin Morse noted in United States v. Zabala Vineyards,[6] whether ultimate hiring actually or ever takes place is irrelevant to a finding of document abuse.

It is the actions of the employer, entirely divorced from the decision to hire, that can land him in hot water.[7] So, for example, if you do not refuse to entertain an application on citizenship grounds, but simply actively discourage it, that too is discriminatory.[8] Every phase of the selection process, not just the decision to hire which comes at the end, can give rise to citizenship status discrimination.[9] But, it remains equally true that an undocumented alien cannot lodge a claim of document abuse.[10]

So, that’s the law. How about getting down and dirty? At the risk of being labeled a pragmatist, here are some dos and don’ts drawn from real life stories of those who traveled a bridge too far in their well-intentioned quest for the perfect I-9:

It is citizenship status discrimination to place job announcements that favor H-1B visa holders over US citizens or lawful permanent residents and vice versa. Just leave status preferences out!

Do not check again when you do not have to. So, for example, when a green card expires, work authorization does not. Avoid the overwhelming urge to re-verify! Above all, do not terminate for an expired green card.

If you participate in E-Verify, DO NOT suspend a worker or otherwise take adverse action upon receipt of a tentative non-confirmation (TNC). Remember also that, unless you are a federal contractor, DO NOT run existing employees through the E-Verify gauntlet.

Do not ask non-US citizens to produce more or different documents than US citizens must provide. So, for example, if you let the latter group show any acceptable document(s) to satisfy the I-9 requirements, do not demand the former to have only USCIS-issued documents.

Only ask for enough to be sure and stop! So, for example, if a job applicant shows you her valid green card + a restricted Social Security card, do not refuse to hire or withdraw an offer of employment. The green card, by itself, is enough. If another potential hire pulls out an unrestricted Social Security card ( List C) combined with a valid driver’s license ( list B) , count your lucky stars and DO NOT say how about a US passport or naturalization certificate?

Always allow new employees to decide what documents they want to show you in support of an I-9.

If someone is a lawful permanent resident, do not ask for proof of US citizenship.

Do not require applicants to be US citizens unless there is a legal reason for such a demand- law, regulation, executive order or contract. Such an exception may and likely will be strictly enforced and narrowly interpreted.

Do not ask prospective job applicants to complete an I-9. Such a filtering device at this early stage can exert a chilling effect upon those who actually are able to establish their employment eligibility but are intimidated from doing so.

Require management approval prior to the posting of any online advertisements

Create an internal audit team to review online postings on a monthly basis

Advise recruitment personnel that deviation from approved recruitment guidelines not only will not be tolerated but will result in appropriate disciplinary actions. Get tough!

Train all managers and HR personnel on the right way to complete an I-9. You might even consider inviting the Office of Special Counsel, www.usdolj.gov/crt/osc to train them. You can even invite an OSC speaker http://www.osc.gov/outreachRequestOSCspeaker.htm . They even offer remote webinars.

Employers can obtain more information on immigration-related unfair employment practices by calling the OSC toll free at 1-800-255-8155 or 1-800-362-2735 for the hearing-impaired. Heck, they even have videos but you have to supply your own popcorn!

If your internal quality control does uncover evidence of past wrongdoing, find who the injured party was and, if possible, invite them to reapply for a new job. All such complaints of document abuse, citizenship status or national origin discrimination and retaliation should be investigated and acted upon within 30 days.

Do not ask employees to re-verify when an identity document, such as a driver’s license, expires. This, my friend, is document abuse.

Remember that asylees and those with TPS do not need an employment authorization document. They may elect to get one to make you feel better since that is what employers are used to looking at but this is entirely optional. They can work incident to status and nothing need or should be done if and when the EAD expires. An employer who cans a TPS worker after his EAD expires ignores at its peril the overriding fact that employment authorization has been automatically extended pursuant to a DHS announcement in your friendly Federal Register. NEVER ask an asylee or TPS to re-verify.

Amend your employment authorization review process to include an extra level of secondary review before you reject an employee’s I-9 documents.

Do not sponsor any job fairs that bar non-citizens from attending or participating.

Always follow the Office of Special Counsel’s “Best Practices for On-Line Postings” to make sure your recruitment and hiring are clean as a whistle. http://1.usa.gov/hw2ZNE . Take it to neighborhood parties and company picnics!

Let your legal department look over all job advertisements before posting. Sure, they nitpick but they mean well!

Add an EEO statement on non-discrimination to your company website and employer handbook.

All advertisements should include language stating the job vacancy is open to anyone who is authorized to work in the United States for any employer and that there will be no discrimination on the basis of citizenship status in employment.

Distribute a copy of the most current USCIS Employment Eligibility Verification Handbook(M-274) available on-line at http:///www.uscis.gov/files/form/m-274.pdf and the most current E-Verify Manual whose hidden secrets are waiting to be unlocked at http:///uscis.gov/USCIS/Verification/E-Verify/E-Verify_Native_Documents/manual-employer_pdf

So there you have it fellow I-9 devotees. Do not say nobody told you. Knowing when to stop may be just as, or even more, important as starting in the first place when it comes to I-9 compliance. Now, I am pretty sure that the English social critic and writer Aldus Huxley never had to fill out an I-9 but doubtless he was thinking of one when he reminded us that “ Hell isn’t merely paved with good intentions; it’s walled and roofed with them. Yes, and furnished too.”

Disclaimer: The information contained in this blog post is provided for educational purposes only, and should not be construed as legal advice or as a substitute for legal counsel. If you have questions concerning how I-9 and E-Verify rules apply to your specific situation, please seek legal advice from a licensed professional attorney.

Originally published by LawLogix Group, Inc. Reprinted by permission.

Footnotes

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1 8 CFR 274a.2 (b) (1) (v).

2 INA 274B (a) (6); Robison Fruit Ranch Inc. v. US. 147 F.3d 798(9th Cir.. 1998).

3 Diaz v. Pacific Maritime ####’n, 9 OCAHO no. 1108(2004).

4 Simon v. Ingram Micro, Inc., 9 OCAHO no. 1088(2004).

5 U.S. v. Swift & Co., 9 OCAHO no. 1068 (May 7, 2001).

6 6 OCAHO 830 (1995)

7 United States v. Strano Farms, 5 OCAHO 748 at 17(1995) (citing United States v. A.J.Bart Inc., 3 OCAHO 538 (1993)).

8 United States v. Lasa Marketing Firms, 1 OCAHO no. 141, 950, 971 no.21 (199).

9 McNier v. San Francisco State Univ., 8 OCAHO no. 1030, 425, 441-43 (1999).

10 Brown v. Baltimore City Public Schools, 3 OCAHO no. 480 at 4 (June 4, 1992); U.S. v. Hyatt Regency Lake Tahoe, 6 OCAHO no. 879 (May 16, 1996).

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To discuss this topic further or learn more about how an Electronic I-9 compliance & E-Verify system can help you meet federal and state law requirements, please call 877-725-4355 or click here. Our electronic I-9 experts and trusted attorney partners will be happy to address your unique I-9 and E-Verify challenges.

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About The Author

Gary Endelman is a Senior Associate at Fong & Associates, LLP, a firm specializing in corporate immigration law. Fong & Associates clients include S&P 500, Fortune 500, Global 500 and IT 100 companies, large-cap and mid-cap companies, oil and gas companies (integrated, operations and oil well services), hospitals, school districts, colleges and universities, research institutes, high tech manufacturers and software companies. Gary Endelman's practice includes I-9 compliance and audits, E-Verify compliance, immigration issues related to mergers and acquisitions, employment-based nonimmigrant visas, B-1 OCS, permanent residence petitions for international executives, aliens of extraordinary ability, outstanding researchers, PERM labor certification; naturalization, derivation and transmission of U.S. citizenship.

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[Sergi9 110]

A New Facet of Government’s Corporate Immigration Enforcement: DOJ Pursues Employers for Discrimination Under Immigration Reform and Control Act for Going Too Far With Form I-9 Verification by Mira Mdivani

A lot has been written recently on the government’s going after employers for insufficient immigration compliance, i.e. not doing enough to check identity and employment eligibility of workers. Employers had to pay large fines (Abercrombie and Fitch, $1,000,000 for imperfect I-9 Employment Eligibility Verification Forms,) and some even went to jail (27 years of jail for CEO of Agriprocessors, where the government used allegations of immigration violations as a “tip of the spear” to investigate and prosecute him on a slew of other charges). In response to this trend, employers are asking more questions when hiring. However, asking too many questions and requiring foreign nationals or naturalized citizens to present more documents than needed under the law may constitute prohibited discrimination under Immigration Reform and Control Act (IRCA). Specifically, section 274B of the Immigration and Nationality Act, 8 U.S.C. 1324b, prohibits:

Citizenship status discrimination in hiring, firing, or recruitment or referral for a fee,

National origin discrimination in hiring, firing, or recruitment or referral for a fee,

Document abuse (unfair documentary practices during the employment eligibility verification, Form I-9, process, and

Retaliation or intimidation.

In the past year, the DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has investigated and prosecuted several employers for IRCA-based discrimination. Three recent cases are on point:

Farmland

On August 22, 2011 Farmland Foods, Inc., a subsidiary of Smithfield Foods Inc. and a major U.S. pork producer headquartered in Kansas City, MO, settled a lawsuit filed by the Department of Justice on June 27, 2011. It took approximately nine weeks for Farmland to agree to pay $290,400, and agree to revise its hiring practices while being “monitored” by the government. In June of 2011, the U.S. Department of Justice’ Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) alleged, based on its investigation, that Farmland, Inc. “engaged in a pattern or practice of discrimination by imposing unnecessary and excessive documentary requirements on non-U.S. citizens and foreign-born U.S. citizens when establishing their authority to work in the United States.” Specifically, the government alleged that:

“Farmland required all newly hired non-U.S. citizens and some foreign-born U.S. citizens at its Monmouth, Ill., plant to present specific and, in many cases, extra work-authorization documents beyond those required by federal law.

In the case of non-U.S. citizens, Farmland required the presentation of additional work authorization documents, generally by requiring social security cards, even when employees had already produced other documents establishing work authority. In the case of foreign-born naturalized U.S. citizens, Farmland required evidence of citizenship, such as certificates of naturalization or U.S. passports, even when those individuals had other means of proving their work authority.”

Catholic Healthcare West

In this case, OSC alleged that Catholic Healthcare West (CHW), a hospital provider, violated anti-discrimination provisions of IRCA by “requiring non-U.S. citizen and naturalized U.S. citizen new hires to present more work authorization documents than required by federal law, but permitted native born U.S. citizens to provide documents of their own choosing.” Catholic Healthcare West entered into a settlement agreement with OSC in October 2010. Under the terms of the settlement, the company agreed to pay $257,000 in civil penalties to the Department of Justice, as well as back pay to the charging party. CHW has also agreed to review its past I-9 practices at all of its 41 facilities in order to identify and compensate any additional victims of over-documentation who have lost wages as a result, and implement policies and procedures for ensuring best practices with regard to hiring and employment eligibility verification.

Brand Energy

Brand Energy and Industrial Services and its subsidiary Industrial Services, LLC settled with OSC in July 2011 after the government alleged that Industrial Services engaged in a pattern and practice of discrimination while completing Form I-9 on its non-citizen workers. The DOJ claimed that Industrial Services required newly hired non-citizen workers to present documents issued by the Department of Homeland Security for purposes of completing Form I-9. The workers were allegedly terminated if they could not produce the required documentation. Industrial Services allegedly did not impose the same requirements on its U.S. citizen workers. Industrial Services agreed to pay a fine of $43,560 to the DOJ, in back pay, and interest to the terminated workers, train human resources personnel, and adopt monitoring provisions of its hiring practices.

Corporate Immigration Attorney’s Take

This is a trend that employers should not ignore. Immigration compliance is a careful balance. In order to comply with the law, businesses must not only do enough in regards to verifying identity and employment eligibility, but they also cannot go too far. Bottom line, implementing well-crafted immigration compliance policies and procedures, conducting I-9 audits to uncover and correct mistakes, training I-9 administrators/hiring personnel to prevent further mistakes, not only keeps employers from violating the law, but is much less expensive compared to the staggering fines employers my face for not non-compliance.

© 2011 Mira Mdivani

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About The Author

Mira Mdivani is an award-winning corporate immigration lawyer, Mira Mdivani is a leading expert in U.S. corporate immigration law. Her areas of expertise include corporate immigration compliance plans, policies and procedures, internal I-9 audits, defense of employers in DHS/ICE/HSI investigations, and work visas for international personnel. Ms. Mdivani is President of Corporate Immigration Compliance Institute. She has authored books and articles on corporate immigration law, and has trained HR professionals and in-house counsel across the nation. Ms. Mdivani also teaches corporate immigration law as an Adjunct Professor of Law at the University of Missouri-Kansas City.