Employment Authorization Verification: A Fine Line Between Compliance and Discrimination.

Contributed by Amber L. Blasingame, Associate Attorney, Colorado Springs Office

The I-9 Form is an enigma among so many complex immigration forms. Employers and employees often may overlook the significance of the form and reasons why the form exists. Created in 1986, the form was intended to reduce the allure of unauthorized employment in the United States. However, a zealous employer must not only focus on the employment authorization verification section of the law, but should also be wary of the anti-discrimination requirements of the law. A recently published settlement agreement between the Office of Special Counsel (OSC) and Commercial Cleaning Systems, Inc. (CCS) reminds employers that the anti-discrimination section of the law is just as important as the employment authorization verification requirements of the I-9 Form.

Anyone who has been hired by an employer since November 6, 1986, has at one time or probably multiple times completed an I-9 Form. It is a two page form (previously only one page) in a myriad of one and two page forms that you complete as part of your hiring process. You may even have called the employer in advance asking her what you should bring with you on your first day of employment. If he or she told you to specifically bring a driver’s license and social security to verify employment without providing you with the full list of acceptable documents, the employer may actually have been in violation of the discrimination portion of the I-9 Form. While other factors may be necessary to actually pursue a claim, it can be that easy for an employer to cross the line, especially if it becomes a practice.

In the OSC settlement with CCS, CCS crossed the line when it “engaged in unfair documentary practices,” specifically “practices of over-documentation” requirements for non-U.S. citizen applicants for employment. The law governing the employment authorization verification process lays out the type of documents that an employer may accept and/or require that a new hire present for employment authorization verification and identification. INA §§ 274A(b)(1); 274B(a)(6). On your first day of work or even prior, your employer may have presented you with a list divided into three columns marked A, B, or C. Each column requests acceptable documents that establish employment authorization and/or identification. The employer should leave it up to the employee as to which of the documents he chooses to present to establish eligibility for employment. If the employee satisfies the document requirement, the employer may not request any additional documents. An employer may also not restrict the documents that an employee may provide, per the example above, or reject a valid employment authorization document with an expiration date. These practices are especially a problem if a pattern emerges of limiting requests for excessive or restrictive documentation to immigrants or persons perceived to be immigrants or foreign nationals. An employer may not discriminate in hiring and firing practices on the “basis of citizenship status or national origin.” INA § 274B(a)(1).

While an employer may think these practices are minor infractions in a good faith effort of compliance, a necessary evil, the consequences of such a practice may lead to civil fines and/or back-pay obligations. In the case of CCS, the employer was fined a total of $53,550, and required to set aside at least $25,000 “to compensate work-authorized individuals” who were not considered for a position, “denied or delayed job placement, suspension, termination, or other periods of lost work” as a result of CCS’s unauthorized hiring practices. Civil fines for unfair documentary practices or document abuse may range from $110 to $1,100 “for each individual discriminated against,” according to the Form M-274 Handbook for Employers available on the USCIS website. Discrimination in hiring on the basis of citizenship status or national origin may lead to fines as much as $3,200 per individual for first time offenders and as much as $16,000 for each individual if the practice continues.

Employers are strongly advised to regularly audit their I-9 Forms and continually train staff on proper and updated workforce compliance procedures and policies. To help in this process, we would encourage employers to seek out counsel from licensed immigration attorneys who can not only assist with the audit process but also provide direction and training to authorized representatives of the employer assigned to collect and retain employment authorization verification forms. In certain states, such as Colorado, this may include state required documentation retention procedures. The US Citizenship and Immigration Services website also provides guidance, including the M-274 Handbook and I-9 Central at http://www.uscis.gov/i-9-central.