I-9 Discrimination and Employer Audits: Lessons learned from the FBA I-9 Worksite Enforcement Conference

In our first article on the Chicago FBA Worksite Enforcement Conference in Chicago, we covered ICE Worksite Enforcement’s priorities, fines, criminal prosecutions, Electronic I-9’s, OCAHO discussions, honesty policies, and independent contractors. In this article, I will cover other subjects discussed at the conference, with a particular focus on immigration-related discrimination and Form I-9 audits. Let’s begin with the issue of discrimination.

In recent years, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been vigorously investigating and prosecuting claims of discrimination that occur during the hiring process. Deputy Special Counsel Alberto Ruisanchez spoke about avoiding such discrimination complaints and emphasized that the OSC has more than just an enforcement role – it is also involved in outreach and educating the public (many of whom still have never heard of the OSC) through its employee hotline and policy work with “sister” agencies in shaping proposed regulations and / or legislation.

Nevertheless, it’s undeniable that civil penalties for discrimination have steadily increased during the past few years, as evidenced by the various settlement agreements published on the OSC website. In this regard, Ruisanchez distinguished between “pattern or practice” complaints and hotline calls. Usually hotline calls only involve a single issue, not a systemic issue. These may be informally resolved with a telephone call to the employer explaining employment verification documents and their requirements. Sometimes these cases are resolved informally or through a Letter of Resolution with no civil penalties being issued and no identification of the parties involved. Other hotline calls lead to full investigations – particularly when the nature of the complaint indicates there may be a pattern or practice of discrimination throughout the organization.

One of the hottest issues debated within these types of discrimination cases (known to attorneys as “Section 1324b cases”) is the definition of intent. Ruisanchez and all of the other panelists, including attorneys Eileen Scofield and Patrick Shen (former OSC Special Counsel) agree that the statute requires the intent to discriminate. However, the government and the private bar disagree over the meaning of intent. In United States v. Diversified (2003), OCAHO found there must be an intent to discriminate in order for there to be a violation. In a later case before OCAHO, United States v. Life Generations Healthcare (2014), OCAHO, without overruling Diversified, took a different viewpoint of intent and found discrimination because the employees were lawful permanent residents (LPR’s), a protected class. In Life Generations Healthcare, OCAHO found discriminatory document abuse based upon “statistical and anecdotal evidence” that LPR’s presented their green cards in a large percentage of the time.

Of course, OCAHO and the OSC failed to account for the legal requirement that LPR’s must carry their green card at all times – making it more likely that green cards would be presented. Mr. Shen argued one should look at the totality of circumstances to which the Deputy Special Counsel stated that would be considered for the level of the penalties. (Side note – this debate continued at the American Immigration Lawyer’s Association (AILA) National Convention, where I was on a panel with the Deputy Special Counsel and Mr. Shen, and the government and private bar attorneys disagreed with the use of statistical evidence to prove intent.)

Besides those issues, the Deputy Special Counsel discussed permissible pre-employment questions. Everyone agrees one may ask an applicant – are you authorized to work in the United States and do you need sponsorship. An employer cannot be forced to sponsor an employee unless it sponsors some and refuses to sponsor others because of their particular national origin.

Other questions, such as where are you from and were you admitted to the United States, can cause confusion and employers are best not to use these questions because it leads to applicant’s confusion, according to the Deputy Special Counsel. Ms. Scofield asked an insightful question – who has the burden to understand the employee’s status – the employer or the employee. The Deputy Special Counsel said that was unknown.

What is known is that the OSC issued a Technical Assistance Letter (TAL) on June 15, 2016, discussing questions which can be asked of an OPT applicant. It concluded an employer could likely ask an OPT applicant if he/she needed a 24-month extension based upon STEM.

The participants also discussed other TALs, including one issued on December 22, 2015, which have been helpful to the private bar in determining discrimination issues. In the December 22, 2015 TAL, OSC discussed the termination of U.S. workers and replacement with contract workers on a temporary visa.

Another panel of private attorneys, Eileen Momblanco, Loan Huynh, and Jeff Joseph, plus a Chicago ICE attorney (speaking in his private capacity) spoke about ICE audits. They discussed the recent OCAHO decision in International Packaging (2016), wherein the employer did not provide the supporting documentation from the I-9 forms because it was not requested in the subpoena. Later, the employer tried to use the supporting documentation to argue many of the violations were only technical. OCAHO disagreed, noting that the Virtue memo only provides such an affirmative defense if the employer copies and retains supporting documents and presents them to ICE with the I-9s for inspection.

A second issue discussed was whether you can request and receive an extension on providing the I-9 forms and other documents. The ICE attorney stated such requests are reviewed on a case-by-case basis but if one makes a reasonable request, it will usually be granted. (This is another hotly debated topic as it appears the district that ICE is located in has a great deal to do with extensions. Some attorneys from Alabama and California state these extensions are never granted while I pointed out at the AILA conference presentation that almost all of my extension requests from the south have been granted.)

The dreaded Notice of Suspect Documents (NSD) was discussed and how long does an employer have to respond to the NSD’s requirement to take action in 10 days. It was the consensus of the private bar that as long as you have started the process and taken reasonable steps, you have met the 10-day rule. However, the ICE attorney said it would be reviewed on a case-by-case basis and if 10 days is reasonable, then the employer should have notified the suspect employees and resolved the issue.

When an attorney receives a Notice of Intent to Fine (NIF), he or she should consider the maximum and minimum liability. It is no secret that ICE uses the matrix which strictly determines their calculations of the amount of each penalty based on the percentage of violations. However, OCAHO is not bound by the matrix and rarely uses it. Furthermore, there are five factors which can aggravate or mitigate a penalty. In the interest of space, I will not discuss the five factors and negotiating ICE down to a reasonable penalty.

Overall, the conference was incredibly informative and is a must for attorneys and corporate counsel involved in employer immigration and I-9 compliance.

About the Author

Bruce E. Buchanan is an Attorney at the Nashville and Atlanta offices of Sebelist Buchanan Law PLLC. He represents individuals and employers in all aspects of immigration law, with an emphasis on employer immigration compliance, as well as employers in employment/labor law matters. He is Past-Chair of the Tennessee Bar Association’s Immigration Law Section from 2011 to 2012 and has been the editor of the TBA’s Immigration Law Section Newsletter and the TBA’s Labor and Employment Law Section Newsletter since 2009. Mr. Buchanan also serves on the Board of Directors for the United Cerebral Palsy of Middle Tennessee and the Mid-South Lupus Foundation. He is an associate member of the Mid-Tennessee Chapter of the Associated Builders & Contractors (ABC).