Employer Alert: Don’t Require Too Many Documents When Completing I-9s

Ever heard of the OSC within the Department of Justice (DOJ)? The Office of Special Counsel for Immigration-Related Unfair Employment Practices enforces the anti-discrimination provision of the Immigration and Nationality Act § 274B, 8 U.S.C. § 1324b. This statute prohibits discrimination in hiring, firing, or recruitment or referral for a fee that is based on an individual’s national origin or citizenship status. The statute also prohibits unfair documentary practices during the employment eligibility verification (Form I-9) process (commonly known as document abuse), and retaliation or intimidation. In short, the OSC is the EEOC of immigration/I-9 discrimination.

What can happen to employers that request too many documents during the I-9 process or reverify employees with expired green cards (lawful permanent residence cards or Form I-551)? (Note – although documents presented during I-9 completion done at the time of hire must be unexpired, employers should not reverify employees whose green cards expire during their employment.) Two employers have recently learned that civil fines and back pay penalties may result from such violations. In October, an OSC investigation determined that a major health care company had required non-U.S. citizens and naturalized U.S. citizens to present more work authorization documents than required by the I-9 process, but allowed native born U.S. citizens to select the documents they provided. In the settlement agreement, the health care provider agreed to pay $257,000 in civil penalties plus $1,000 in back wages to the charging party. The company also agreed to review I-9 procedures and train its recruitment personnel on I-9 procedures and provide reports to the OSC for a period of three years. In a November press release, the DOJ announced that it reached a settlement agreement with vacuum manufacturer Hoover Inc. An OSC investigation found that Hoover had required employees who had presented a permanent resident card (green card) for I-9 purposes to produce a new green card when theirs expired. Hoover agreed to a civil penalty of $10,200, to conduct I-9 training, and to provide reports to the OSC for a period of one year.

Employers are encouraged to revisit I-9 processes to ensure compliance not only with basic I-9 completion requirements, but also to be sure they are not violating the I-9 discrimination and document abuse rules as well. The OSC posts information and guides for employers on its website. Note also that the OSC has posted compliance guides for those employers that use E-Verify, the Internet-based employment verification system operated by the United States Citizenship and Immigration Services (USCIS). Also, the OSC provides some basic guidance for employers that receive Social Security “no-match” letters.