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I-9 Completion: Beware of Discrimination

By: Maria Mejia-Opaciuch

As simple as the Form I-9, Employment Eligibility Verification Form appears, in the process of completion of the two page form, employers are unwittingly discriminating against certain employees. In recent months, fines imposed by the varied U.S. government agencies responsible for ensuring I-9 compliance have been significant and the majority due to discriminatory practices in the I-9 completion process.

Over documentation or requesting specific documents of an employee will lead to charges of discriminatory practices. The Immigration and Nationality Act’s (INA) anti-discrimination provision prohibits employers from placing additional documentary burdens on work-authorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin.

An employee who is completing a Form I-9 cannot be asked to present specific documents. Employees are allowed to present a document from List A of Acceptable Documents or one from List B and one from List C. Common pitfalls occur when an employer requires the employee to present a specific document or a combination of documents. Further, requesting an employee to present more or different documents than minimally required for employment verification will lead to charges of discrimination. An employer should not refuse to accept documents that reasonably appear genuine on their face and request other documents from the employee.

Additionally, an employer cannot request specific documents issued by the U.S. Department of Homeland Security in order to verify the employment eligibility of work-authorized non-U.S. citizens which they do not request from U.S. citizens and allow them to present their choice of documentation. A June 2014 settlement agreement between the U.S. Department of Justice and a Colorado-based janitorial services company was reached resolving claims that the company discriminated against work-authorized non-U.S. citizens by requiring specific documents from them in the Form I-9 completion but not from U.S. citizens. The company agreed to pay over $50,000 in civil penalties, create a $25,000 back pay fund to compensate individuals who may have lost wages as a result of the company’s discriminatory practices and be subject to monitoring of its employment eligibility verification practices for one year. In April 2014, a Dallas-based concrete company paid $115,000 for similar discriminatory practices.

Simply, an employer cannot make requests for any specific documents of any employee. Such acts will lead to expensive discrimination charges, monitoring of the Form I-9 completion process by the U.S. government for extended periods and poor public relations. As an employer, it is critical to know the acceptable documents under each of the lists and to have the photos of these acceptable documents readily available for the employer’s I-9 officer or human resources personnel responsible for I-9 completion and maintenance. Further, all employees completing the form I-9 should be able to freely choose which document they will present at the time of employment verification and be given the list of the acceptable documents.

This is also true in the re-verification process when an employer needs to update any expired employment authorization document in Section 3 of the Form I-9. A New York City nursing home was recently fined for engaging in a pattern or practice of citizenship discrimination during the employment eligibility reverification process in violation of the INA. The Justice Department found that the nursing home required lawful permanent residents (green card holders) to present a new green card when their old one had expired, even though the Form I-9 rules prohibit this practice. Lawful permanent residents have permanent work authorization in the United States, even after their green cards expire. Further, the nursing home required the green card holders to provide proof of U.S. citizenship if they became naturalized citizens. Again, this practice is prohibited by the INA’s anti-discriminatory provisions. Employers cannot place additional documentary burdens on work-authorized employees during the employment eligibility verification process based on their citizenship status. The nursing home reached an agreement with the US Department of Justice whereby they agreed to pay $14,500 in civil penalties, undergo training on the anti-discrimination provision of the INA, establish a back pay fund to compensate potential economic victims, revise its employment reverification policies and be subject to monitoring of their employment verification practices for two years.

These discriminatory practices are prevalent enough to prompt the U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), which is responsible for the enforcing the anti-discriminatory provisions of the INA, to release a June 2014 update to its “Fact Patterns Flyer,” illustrating various forms of discrimination by drawing on examples from recent OSC enforcement of the INA’s anti-discrimination provision.

For more information on whether your business would benefit from reviewing their employment verification practices, and whether your company is currently in compliance with required I-9 completion and maintenance practices, we refer you to our Carlton Fields Jorden Burt blog, 10 Practical Compliance Tips for Growing Companies (May 7, 2014). Please also feel free to contact one of Carlton Fields Jorden Burt’s Immigration Attorneys for any further guidance in the employment verification process or to receive a copy of the OSC flyer.

Maria Mejia-Opaciuch is an attorney at Carlton Fields Jorden Burt with more than 25 years of corporate immigration experience. She assists companies of all sizes with their immigration programs and policies, and is experienced in obtaining work visas and residency, and in the hiring and transferring of foreign nationals into the United States. She also counsels companies on I-9 completion and maintenance policies, I-9 and E-Verify programs and audits, and other related corporate immigration programs. Send Maria an email.