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Our thanks to today’s sponsor:
© 2019 Worldwide ERC®
6 June 20192 PM (U.S. Eastern)
Navigating the Anti-Discrimination and Unfair Documentary Practices Under the INA
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© 2019 Worldwide ERC®
Today’s Moderator
Kelli DuehningSenior Counsel
Berry Appleman & Leiden LLP
Headshot here, sized to placeholder.
Today’s Speakers
Jenna Grambort, Trial AttorneyImmigrant and Employee Rights SectionCivil Rights DivisionU.S Department of Justice
Richard Crespo, Trial AttorneyImmigrant and Employee Rights SectionCivil Rights DivisionU.S. Department of Justice
POLL QUESTION #1
Have you ever called IER’s employer hotline?
POLL QUESTION #2
Do you handle the Form I-9 as part of your duties?
Avoiding Immigration-Related Discrimination
U.S. Department of JusticeCivil Rights DivisionImmigrant and Employee Rights Section (IER)
Presentation Overview
1. IER history
2. Scope of IER’s work
3. Unlawful discrimination
4. IER enforcement
5. IER assistance
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
History of IER
» Immigration Reform and Control Act of 1986
» Created sanctions for knowingly hiring unauthorized workers
» Established Form I-9 process
» Created anti-discrimination protections that IER enforces
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
» Enforcement
» Policy
» Outreach
Scope of IER’s Work
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Prohibited Discrimination under the INA (8 U.S.C. § 1324b)
1. Citizenship/Immigration Status Discrimination
2. National Origin Discrimination
3. Unfair Documentary Practices
4. Retaliation
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Citizenship Status Discrimination
» Hiring» Firing» Recruitment or
referral for a fee
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Omar is a lawful permanent resident, and interviews for a job as an engineer. Omar doesn't get the job because the hiring manager does not like to hire non-U.S. citizens.
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Qualified U.S. workers apply for driver positions at a bus company. The bus company ignores the U.S. applicants because it wants to hire H-2B drivers. The bus company successfully applies to DOL for permission to hire H-2B drivers.
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Is preference in hiring based on citizenship status ever permissible?
» When required by law, regulation, executive order, government contract
» With unprotected individuals, such as those without work authorization and those requiring sponsorship
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
IER Case (1)
Honda Aircraft Company (2019)Greensboro, NC
» IER’s investigation found that the company refused to consider non-U.S. citizens, restricting jobs to U.S. citizens and LPRs based on a misunderstanding of ITAR and EAR.
» The company paid a civil penalty of over $44,000.
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
IER’s Protecting U.S. Workers Initiative
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
IER Case (2)
CFA Institute (2019)Charlottesville, VA
» IER’s investigation found that the Institute set aside positions for H-1B visa holders, and refused to consider U.S. citizens and other work-authorized immigrants for those positions because of their citizenship status.
» The Institute paid $321,000 in civil penalties.
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
National Origin Discrimination
» Hiring» Firing» Recruitment or
referral for a fee
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Maya is a lawyer. She speaks English with an accent. She applies for a job at a law firm and is invited to interview. The firm decides not to hire Maya when they hear her accent because they don't know how their clients would feel about it.
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Unfair Documentary Practices
» Form I-9» E-Verify
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Unfair Documentary Practices; Form I-9 and E-Verify
Employers may not reject reasonably genuine-looking documents
Request
Reject
Specify
Employers may not request more or different documents
Employers may not specify certain documents
based on Citizenship Status or National Origin
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
DHS USCIS Form I-9
The Form I-9 is used to verify identity and permission to work.
The purpose of the Form I-9 is not to verify a particular immigration status.
www.uscis.gov/i-9-central
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Form I-9 Section 1
Worker completes Section 1 afteraccepting a job offer and by the first day of work.
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Form I-9 Section 1 Attestation Boxes
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Form I-9 Section 1 Attestation Boxes
Points on Aliens Authorized to Work
N/AX
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Form I-9 Section 2
Employer completes Section 2 within three business days of the worker’s start date.
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Form I-9 Lists of Acceptable Documents
Worker’s choice of selection from List A, or a combination of selections from Lists B and C.
List Aor
List B + List C
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Oksana is a lawful permanent resident. She accepts a new position. On her first day of work, she brings her ID and unrestricted Social Security card. Oksana's supervisor tells her to bring in her "green card" by the end of the month to prove she is a permanent resident.
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Common Document Questions
I-94s
EAD automatic extensions
Receipts for lost, damaged, and
stolen documents
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Type of I-94 Form I-9 use? How long is thisdocument valid?
What must the employee present at theend of the receipt validity period?
Refugee I-94 List A receipt 90 days from the first day of work
An unexpired EAD (Form I-766) or a combination of a valid List B document and an unrestricted Social Security card
Asylee I-94 Permanent List C Does not expire N/A
LPR I-94 List A receipt
Until expiration date, or one year from admission if no expiration date
The actual Form I-551 (Permanent Resident Card, or “Green Card”)
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Samir recently moved to the United States as a refugee. He gets a job as an auto mechanic and shows the company his I-94 when he fills out the Form I-9. Because Samir is not a U.S. citizen, his boss asks to see an EAD or green card.
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Form I-9 Section 3
Example of Documents that Require Reverification
Temporary VisasEmployment Authorization Documents
Temporary I-551 Stamps
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Form I-9 Section 3Lists of Acceptable Documents
Employer must accept a List A or List C selection for Section 3 reverification.
List Aor
List C
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Ana, an asylee, has been working in construction for several months. Ana’s EAD expired, and her boss insists on seeing a new EAD because that is what Ana showed when she started working.
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Form I-9 Section 3
Employers should never reverify:
» List B documents
» Permanent Resident Cards
» U.S. Citizens’ documents
» U.S. Nationals’ documents
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Social Security Numbers
» SSA, IRS, USCIS guidance» Call IER for assistance
Working While Waiting to Receive SSN
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
DHS E-Verify
» E-Verify compares Form I-9 data with government records.
» IER does not administer E-Verify, but we do investigate discriminatory use of the program.
» If an employer uses E-Verify, the proper sequence is to hire the worker, complete the Form I-9, and then run the worker through E-Verify.
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
DHS E-Verify
Relationship to Form I-9
» Employers may not ask workers for specific documents for Form I-9 or E-Verify.
» E-Verify makes 3 changes to the Form I-9 process:» List B document with photograph» Social Security numbers» Copying Form I-9 documents
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Social Security Number Mismatches
» Sources
» Responding
» SSNVS use
» No-match guidance on IER’s website» SSN No-match FAQs» SSN No-match Dos and Don’ts
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Retaliation
» Intimidation» Coercion» Threats
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
IER investigates a shipbuilding company. IER speaks to Santiago about his experiences at the company during the investigation. The company was going to promote Santiago, but doesn't when it learns he spoke to IER.
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
IER Enforcement Process
Charge or Independent Investigation
Dismissal Settlement Lawsuit
Investigation
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Possible Remedies
Hire or rehire Back pay
Training Monitoring
Policy changes Civil penalties
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
Filing a Charge
» Charge forms are available in many languages
» File in any language» File within 180 days» Online, email, fax or mail
www.justice.gov/crt/filing-charge
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155
IER Hotlines
Employer 1-800-255-8155
Worker 1-800-255-7688
Mon – Fri 9am-5pm ET
Calls can be anonymous and language services are available.
1-800-237-2515 TTY
U.S. Department of Justice | Civil Rights Division | Immigrant and Employee Rights Section (IER) | www.justice.gov/ier | 1-800-255-8155