Avoiding Discrimination in the Employment Eligibility Verification Process March 25, 2008 2PM ET Office of Special Counsel for Immigration Related Unfair Employment Practices Employment Eligibility Verification: I-9 and Discrimination Issues

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Presenters Presenters: Erik Lang, Trial Attorney, Office of Special Counsel, U.S. DOJ Jennifer Sultan, Trial Attorney, Office of Special Counsel, U.S. DOJ Moderator: Elissa McGovern, Manager, Policy and Regulatory OFLC, ETA Employment Eligibility Verification: I-9 and Discrimination Issues

Erik Lang, Trial Attorney, Office of Special Counsel for Unfair Immigration-Related Employment Practices (NOTE: Use this slide to transition between speakers and introduce new speakers/presenters during the presentation.) Employment Eligibility Verification: I-9 and Discrimination Issues

Welcome Highlights OSC: Who We Are… and What We Do 8 USC 1324b Unfair immigration-related employment practices Employment Eligibility Verification: I-9 and Discrimination Issues

Special Rules for SWAs 8 U.S.C. § 1324a(a)(5) “Use of State employment agency documentation” (Statutory Authority) 8 C.F.R. § 274a.6 (Regulatory Authority) State employment agency can not accept receipts (§ 274a.6(a)(1) ) Employment Eligibility Verification: I-9 and Discrimination Issues

Historical Overview of OSC Immigration Reform and Control Act of 1986 (IRCA) Employer Sanctions for Knowingly Hiring Undocumented workers Established I-9 Employment Eligibility Verification Process Created OSC to Enforce Anti-discrimination Provision Employment Eligibility Verification: I-9 and Discrimination Issues

Resulting Discrimination Government Studies Found Widespread Pattern of Discrimination 1990 GAO Report: Against citizens/legal workers Against persons who appeared foreign Against persons with foreign accents Employment Eligibility Verification: I-9 and Discrimination Issues

Impact of Employer Sanctions GAO Found: 19% of employers (891, 000), hiring 6.8 million workers/year, BEGAN discriminatory practices Concluded: Asians/Hispanics harmed by implementation of the 86 law Employment Eligibility Verification: I-9 and Discrimination Issues

Prohibited Conduct Under the INA’s Anti-Discrimination Provision 8 U.S.C. 1324b Citizenship status discrimination National origin discrimination Document abuse Retaliation Employment Eligibility Verification: I-9 and Discrimination Issues

Citizenship/Immigration Status Discrimination With Respect to Hiring, Firing, and Recruitment or Referral for a Fee: All employers with more than 3 employees Protected Persons: U.S. citizens, nationals, asylees, refugees, temporary residents, and LPRs Excludes LPRs who do not apply for citizenship within 6 months of eligibility Employment Eligibility Verification: I-9 and Discrimination Issues

Not Covered Non-Immigrant Visa Holders Asylum Applicants Lawful Permanent Residents Who Have Not Applied for Naturalization W/N Six Months of Their Eligibility Undocumented Workers Employment Eligibility Verification: I-9 and Discrimination Issues

Examples of Citizenship Status Discrimination Citizen only hiring policies Exceptions: Required by law, regulation, or government contract Can prefer equally qualified U.S. citizens But see: Mesa Airlines: Cannot give U.S. citizens priority without considering immigrants Employment Eligibility Verification: I-9 and Discrimination Issues

Examples of Citizenship Status Discrimination (Con’t) Green Card only Hiring Policies: Marcel Watch: Requiring Green Card from U.S. Citizens born in Puerto Rico Refusing to Hire Asylees/Refugees: PEPCO: Refusing to hire Asylees because EAD had future expiration date Covenant Transport: Refusing to hire Asylees for driving positions because of routes in the U.S. and Canada Employment Eligibility Verification: I-9 and Discrimination Issues

Examples of Citizenship Status Discrimination (Con’t) Preferring undocumented workers: Iron Workers Local 455 vs. Lake Construction Corporation Different hiring procedures for U.S. citizens and immigrants: Agripac: Required immigrants, or those who appeared foreign, to show work documents before applications: U.S. citizens, or those who appeared to be U.S. citizens, provided employment application without question Asylees for driving positions because routes are in the U.S. and Canada Web-Based want ads Employment Eligibility Verification: I-9 and Discrimination Issues

Examples of Citizenship Status Discrimination (Con’t) Preferring H1-B or other temporary workers: Bland Farms: Preferring H-2A workers But See DANIEL OJEDA-OJEDA, ET AL, v. BOOTH FARMS, 9 OCAHO No. 1121 (2006) See also: 20 CFR 658.501 - Basis for discontinuation of services. Employment Eligibility Verification: I-9 and Discrimination Issues

National Origin Discrimination Discrimination linked to person’s place of birth, country of origin, ancestry, native language, accent; perceptions…. With respect to hiring, firing, recruitment or referral for a fee All employers with more than 3 and less than 15 employees Protected Persons: U.S. citizens and nationals, and legal workers Employment Eligibility Verification: I-9 and Discrimination Issues

U.S. citizens and nationals, and all legal workers Document Abuse Requiring immigrants to present INS-issued documents; allowing U.S. citizens choice of documents Requiring those who appear foreign to show documents proving status Greater scrutiny and rejection of valid documents from immigrants Covers all employers of more than 3 employees Protected Persons U.S. citizens and nationals, and all legal workers Employment Eligibility Verification: I-9 and Discrimination Issues

Intimidation or Retaliation Person or entity may not: Intimidate Threaten Coerce Retaliate Against Any Person To interfere with right/privilege secured under Section 1324b Or Because person intends to, or has: Filed a charge or complaint, or Testified, assisted or participated in an investigation or hearing Employment Eligibility Verification: I-9 and Discrimination Issues

How to File a Charge with OSC? Charge must be filed within 180 days of Discrimination: Charge forms available from the OSC Web site in English, Spanish, and Chinese at: www.usdoj.gov/crt/osc Charges may be filed in any language Injured parties or advocates can file charges OSC will complete investigation within 7 months For further information, charge forms, or any questions, contact OSC’s Worker Hotline at: 1-800-255-7688 Employment Eligibility Verification: I-9 and Discrimination Issues

After a Discrimination Charge is Filed…What Happens? 180days Discrimination occurs Investigation by OSC File Charge with OSC After 120days Employment Eligibility Verification: I-9 and Discrimination Issues

After 120days Within 90days Within 90days OSC finds no cause: Notifies Parties OSC does not make a decision: Notifies Parties OSC finds cause: Notifies Parties and Seeks Resolution Within 90days OSC Investigation continues Within 90days Within 90 days Injured person files complaint with ALJ OSC or injured person files complaint with ALJ Either OSC or injured person files complaint with ALJ Settlement attempts Discovery Employment Eligibility Verification: I-9 and Discrimination Issues

Appeal by either party to: Summary: 180 days to file charge…OSC investigation (7 months)... File suit during last 90 days Discovery Settlement attempts Hearing with ALJ No violation ORDER Violation Appeal by either party to: U.S. Court of Appeals Final Appeal to: U.S. Supreme Court Employment Eligibility Verification: I-9 and Discrimination Issues

Remedies Hire or rehire Backpay Cease and desist Civil Penalties Training Monitoring Attorney’s Fees Employment Eligibility Verification: I-9 and Discrimination Issues

Civil Penalties Citizenship Status Discrimination/ National Origin Discrimination 1st Violation……….............. $275 - $2,200 2nd Violation………............. $2,200 - $5,500 Subsequent Violations…….. $3,300 - $11,000 Civil Penalties continue to increase Document Abuse Violations…....$110 - $1,100 Employment Eligibility Verification: I-9 and Discrimination Issues

Form I-9 Employment Eligibility Verification: I-9 and Discrimination Issues

I-9 Process Section 1 (Employee Information and Verification) Employee must complete, sign and date Section 1 on first day of work Potential Problems Employment Eligibility Verification: I-9 and Discrimination Issues

A Citizen or National of the United States I Attest, Under Penalty of Perjury, that I Am (check one of the following): A Citizen or National of the United States A Lawful Permanent Resident (Alien # A __) An Alien Authorized to Work Until __/__/__ Alien # or Admission # __________ Employment Eligibility Verification: I-9 and Discrimination Issues

An Alien Authorized to Work Until __/__/__ Do Refugees and Asylees always have an expiration date? What if possess an Unrestricted Social Security Card and Driver’s License, but Not an EAD? If no Expiration Date, Write __/__/__ “N/A – Asylee” or “N/A – Refugee” Employment Eligibility Verification: I-9 and Discrimination Issues

I-9 Process (Cont’d) Categories of Acceptable Documents: List A (Both ID and Employment Eligibility) List B (ID Only) List C (Employment Eligibility Only) Employment Eligibility Verification: I-9 and Discrimination Issues

I-9 Process (Cont’d) Additional List C Documents: Unexpired EAD issued by DHS: Form I-94 identifying holder as asylee or other DHS document identifying individual as authorized to work incident to status Does not include IJ decision Special Note: I-94 with errors Yates Memo Employment Eligibility Verification: I-9 and Discrimination Issues

I-9 Process (Cont’d) (Employer Review and Verification) Section 2 (Employer Review and Verification) Examine documentation to determine whether reasonably appears to be genuine and relates to the employee Record document(s) in appropriate column Sign and date certification section Employment Eligibility Verification: I-9 and Discrimination Issues

I-9 Process (Cont’d) Provide employee with at least 90-day notice Section 3 (Updating and Re-verification) Provide employee with at least 90-day notice Accept any document from List A or List C Do not re-verify List B identity documents Do not re-verify employees who present resident alien cards with future expiration dates Do not require specific document for re-verification; can accept unexpired Social Security cards Employment Eligibility Verification: I-9 and Discrimination Issues

Jenifer Sultan, Trial Attorney, Office of Special Counsel for Unfair Immigration-Related Employment Practices (NOTE: Use this slide to transition between speakers and introduce new speakers/presenters during the presentation.) Employment Eligibility Verification: I-9 and Discrimination Issues

Electronic Verification of Employment Eligibility by DHS and SSA E-Verify (formerly the Basic Pilot Program) Electronic Verification of Employment Eligibility by DHS and SSA Is it Failsafe? Employment Eligibility Verification: I-9 and Discrimination Issues

DHS–Sponsored Study Found: Pre-Employment Screening Not Allowing Workers to Correct Errors Not Informing Workers of E-Verify participation Refusals to Hire/Premature Terminations Privacy and Training Concerns Inaccuracy of DHS Data Base Employment Eligibility Verification: I-9 and Discrimination Issues

E-Verify USCIS Guidance: E-Verify User Manual http://www.uscis.gov/files/nativedocuments/E-Verify_Manual.pdf For workers: http://www.uscis.gov/files/nativedocuments/e-ver-employee-rights.pdf In Spanish: http://www.uscis.gov/files/nativedocuments/e-ver-employee-rights-sp.pdf Employment Eligibility Verification: I-9 and Discrimination Issues

How to Respond to Social Security “No-Match” Letters Check Records for Errors Inform Employee of the No-Match Letter Request that Employee Check Their Records for Errors Refer Employee to the Local Social Security Administration (SSA) Office for Assistance Submit any Employer or Employee Corrections to the SSA Employment Eligibility Verification: I-9 and Discrimination Issues

OSC works in partnership with other Federal, State and local civil rights and labor law agencies, as well as trade associations, labor and community groups. If we can’t help you , we can direct you to the appropriate office for assistance. Employment Eligibility Verification: I-9 and Discrimination Issues

Telephone Intervention System As an alternative to the charge process, OSC resolves over 150 cases annually through its speedy Telephone Intervention System for willing employers and workers. Employment Eligibility Verification: I-9 and Discrimination Issues

Resources Cartoon Booklet Employer Guide If you have any questions, or need printed materials, call the toll-free number: Employee: 1-800-255-7688 Employer: 1-800-255-8155 Web site: http://www.usdoj.gov/crt/osc/ Email: osccrt@usdoj.gov Worker Brochure Employer Brochure Employment Eligibility Verification: I-9 and Discrimination Issues

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