The U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) investigates claims of immigration-related and citizenship discrimination in the Form I-9, Employment Eligibility Verification process. Claims, investigations, and penalties are on the rise in this area as employers, large and small, make often innocent mistakes in the dealing with I-9 and E-Verify issues. Watch this presentation for employer best practices to avoid liability.

1. HR Best Practices You Must Use
TO AVOID IMMIGRATION DISCRIMINATION
CLAIMS AND PENALTIES
By Ann Massey Badmus 2015

2. Legal Landscape
Prohibited Conduct
Penalties & Recent Cases
Best Practices
Agenda

3. Department of Homeland Security
U.S. Citizenship & Immigration Services
U.S. Citizenship &
Immigration Services (USCIS)
www.uscis.gov
Immigration and citizenship
application oversight

4. U.S. Customs and Border Protection (CBP)
www.cbp.gov
Border patrol and international travel facilitation
Department of Homeland Security
U.S. Customs and Border Protection

5. Department of Homeland Security
Immigration and Customs Enforcement
Investigates employers for
compliance with
employment verification
(I-9 Form)rules and removes
undocumented aliens
www.ice.gov

6. U.S. Department of Labor
Investigates employer verification compliance, visa
compliance, violation of worker rules
www.dol.gov

7. U.S. Department of Justice
Office of Special Counsel (OSC)
Investigates and
prosecutes charges of
immigration-related
unfair employment
practices
www.usdoj.gov/crt/osc

8. Citizenship or Immigration Status
Discrimination
National Origin Discrimination
Document Abuse
Retaliation or Intimidation
Prohibited Conduct

9. Prohibits different treatment
because of citizenship or
immigration status
Protects US citizens, recent
permanent residents, temporary
residents, asylees or refugees
only
Citizenship/Immigration Status
Discrimination

10. Prohibits different treatment
because of place of birth, country
of origin, ancestry, native language,
accent, or looks or sounds “foreign”
Protects ALL work authorized
individuals
National Origin Discrimination

11. Prohibits request for more or
different documents than required or
rejection of genuine-looking
documents
Prohibits requirement of specific
documents based upon citizenship
status or national origin
Protects ALL work authorized
individuals
Document Abuse

12. Common Mistakes
Your supervisor catches you
before you start
interviewing applicants for a
job. She says, “Find out if
those two near the door
have their ‘green cards’
before you waste your time.
Did you discriminate in hiring?

13. Common Mistakes
The managing partner of
your firm issues a memo
stating, “Please be careful
when hiring people who
look like they crossed the
border illegally.”
Has your firm committed national origin discrimination?

14. Have you committed citizenship status
discrimination?
Common Mistakes
You find two equally qualified
candidates to fill one position.
In deciding between the two,
you decide on one because he is
a permanent resident and the
other, an asylee, only has a
temporary work permit (EAD).

15. Are you in compliance with the IRCA?
Common Mistakes
You implement an employee
referral program. Unofficially,
you tell employees that you
prefer they only refer
applicants who are U.S.
citizens.

16. Does Angela have a case against you?
Common Mistakes
You hire Angela Lopez and are
surprised when she hands you
a state-issued driver’s license
and an unrestricted Social
Security card for her I-9 form.
You say, “I must see a card
issued by the USCIS.”

17. $100 to $16000 depending upon the violation
Back pay (no more than 2 years before claim
was filed)
Hire or re-hire
Personnel Training
Attorney Fees
Penalties for Anti-Discrimination Violations

18. June 25, 2015
Violation: National retailer, Abercrombie & Fitch, required the
individual to present a green card and refused to accept valid I-
551 stamp in passport
Settlement: $3,661.14 in back pay to the complainant and
a civil penalty to the United States; establish a back pay fund of
$153, 932.00 to compensate other individuals who may have
been harmed; and be subject to monitoring of its employment
eligibility verification practices for two years.
Recent OSC Settlements

19. June 19, 2015
Violation: Accountemps, a division of Robert Half
International Inc., refused to refer an applicant for a
federal government contract position because, as a
naturalized citizen, she was not born in the United States.
Settlement: Accountemps will continue to refer the
applicant for positions for which she is qualified, pay a
$2,500 civil penalty, train its staff on the anti-
discrimination provision of the INA, and be subject to a
one-year monitoring period.
Recent OSC Settlements

20. May 27, 2015
Violation: Luis Esparza Services, Inc. required non-citizens to produce
DHS-issued List A documents in addition to non-DHS issued List B and
C documents to establish identity and work authority in violation of
the anti-discrimination provision of the INA.
Settlement: Under the terms of the settlement agreement, the
Respondent will pay $320,000 in civil penalties, provide back pay to
an economic victim, comply with specific injunctive and corrective
action requirements, and be subject to monitoring for a three year
period.
Recent OSC Settlements

21. Anti-Discrimination Best Practices
Recruitment & Hiring Best Practices
•No “citizens only” hiring policy
unless required by law
•Avoid discriminatory language in
job postings and do not pre-screen
using I-9 form
•No language requirements unless
necessary to perform job
•Educate hiring personnel about
equal employment opportunity
laws including anti-discrimination
immigration rules

22. Anti-Discrimination Best Practices
Form I-9 Process Best Practices
Section 1 (Employee)
• Do not ask for proof of
immigration or
citizenship status
• Do not require
expiration date
• Do not require social
security number,
unless using E-Verify

23. Anti-Discrimination Best Practices
I-9 Process Best Practices (cont.)
Section 2 (Employer)
• Do not require any specific
document
• Do not reject unfamiliar or
older version documents
• Do not reject documents
because of upcoming
expiration date, e.g. EAD
or green card

24. Anti-Discrimination Best Practices
I-9 Process Best Practices (cont.)
Section 3 (Reverification)
• Do not re-verify U.S.
citizens or permanent
residents (“green card”)
• Allow workers to present
any compliant document
• Do not re-verify identity
documents that have
expired

25. Anti-Discrimination Best Practices
E-Verify Best Practices
Use consistently
regardless of citizenship or
immigration status
Do not use E-Verify before
hire
Do not request specific or
additional documents
Do not make assumptions
based upon tentative non-
confirmation (TNC)

26. Anti-Discrimination Best Practices
Worksite Enforcement Audit Best Practices
Provide all workers with
reasonable amount of time
to correct discrepancies
Inform employees about
audit
Don’t selectively verify
certain employees because
of audit notice
Require more evidence than
audit requires

28. Facts of each case are different. The general
information provided here should not be
relied and is not legal advice.
Consult with an experienced attorney to get
the right advice for your specific
circumstances.
What to Do Next?

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