Agency reports that nation’s largest companies have missteps in their I-9 and E-Verify operations

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently announced that many large employers routinely have “missteps” in their I-9 and E-Verify business practices, which violate the regulations on employment eligibility compliance. This stark (but not surprising) news comes courtesy of the American Immigration Lawyers Association (AILA), which recently met with OSC members to discuss the agency’s role in monitoring I-9 and E-Verify issues. By way of background, the OSC enforces the anti-discrimination provision of the Immigration and Nationality Act, which prohibits citizenship or immigration status discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with four or more employees. According to the liaison meeting, OSC received 282 charges of discrimination against employers in 2009 and completed 161 successful interventions where employers were contacted and investigations were not initiated. I-9 and Hiring Issues received by OSC The charges received by OSC included the following:

  • 39% citizenship discrimination in firing
  • 24% national origin discrimination in firing
  • 24% failure to hire based on citizenship
  • 18% document abuse (e.g., requiring more documents during the I-9 process than is required)
  • 22% allege retaliation

E-Verify Issues With the dramatic increase in E-Verify use, OSC has been busy working to address problems with employer misuse of E-Verify that may ultimately lead to adverse consequences for authorized workers. Examples of E-Verify misuse include submitting current (existing) employees to E-Verify (when the employer is not a qualifying federal contractor), completing new I-9s for employees when it is not warranted, or terminating an employee before a Final Nonconfirmation (FNC) is received. OSC also sees many instances where employers are not properly referring the tentative nonconfirmation (TNC), and so the employee is never able to resolve the issue. OSC also noted that employers frequently enter workers’ information into E-Verify with typographical errors, resulting in a TNC, but then do not take steps to uncover the mistake. How these issues are resolved In most situations, OSC uses letters of resolution and out of court settlement agreements to resolve the majority of charges. Most written settlement agreements include remedial relief for the aggrieved party, policy and practice recommendations, ongoing training, civil penalties, and reporting and monitoring provisions. In recent years, OSC has even more discretion in facilitating settlements (even without the possibility of litigation). OSC also has relationships with a variety of government agencies, including the Department of Labor (OFCCP), the Social Security Administration (SSA), and Immigration and Customs Enforcement (ICE). OSC also meets 2-3 times each week with USCIS at a staff level and meets once a month at a senior management level to discuss E-Verify issues.