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Sometimes You Can Go Too Far: How to Avoid Citizenship Status Documentation And Document Abuse

[Editor’s note: today’s blog is courtesy of Gary Endelman, Senior Associate at Fong & Associates LLP].

The opinions expressed are solely those of the author. Sometimes you have to know when to stop.  That is not as easy as it sounds. Conscientious employers are well aware that the I-9 cops will be on them like a cheap suit if they hire anyone who does not have permission to work in the United States. So, the thought goes, you can never be too careful. If some proof is good, then more doubtless is better. Right?  This is where the best of intentions can create a boatload of unanticipated headaches. Read on friend.

If you have not had the pleasure of reading section 274B (a) (6) of the Immigration and Nationality Act, let me introduce you to its tender mercies:

A person’s or other entity’s request for purposes of satisfying the requirements of section 274A (b) for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual …

An employer simply is not allowed to dictate or select what supporting I-9 documents a job applicant elects to offer up.[1]  However, such a request is an unfair employment practice only ifaccompanied by intent to discriminate.[2] This comes from Section 421 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996- the brainchild of Congressman Sonny Bono. It is otherwise known to us aging Boomers as the “I’ve Got You Babe!” amendment for which we remain eternally grateful.

Interestingly, such “document abuse” will not stand in the absence of such illicit intent solely by virtue of disparate impact. After 1996, we are no longer in strict liability territory and standard notions of intentional discrimination apply.[3] So, for example, if someone lies on their I-9 and works illegally but then becomes legal, they can be fired without exposure for document abuse for violation of the employer’s honesty policy on employment applications.[4] Be aware that document abuse does not depend upon after hiring but can take place before as well.[5] In fact, as Judge Marvin Morse noted in United States v. Zabala Vineyards,[6] whether ultimate hiring actually or ever takes place is irrelevant to a finding of document abuse.

It is the actions of the employer, entirely divorced from the decision to hire, that can land him in hot water.[7] So, for example, if you do not refuse to entertain an application on citizenship grounds, but simply actively discourage it, that too is discriminatory.[8] Every phase of the selection process, not just the decision to hire which comes at the end, can give rise to citizenship status discrimination.[9] But, it remains equally true that an undocumented alien cannot lodge a claim of document abuse.[10]

So, that’s the law. How about getting down and dirty? At the risk of being labeled a pragmatist, here are some dos and don’ts drawn from real life stories of those who traveled a bridge too far in their well-intentioned quest for the perfect I-9:

  • It is citizenship status discrimination to place job announcements that favor H-1B visa holders over US citizens or lawful permanent residents and vice versa. Just leave status preferences out!
  • Do not check again when you do not have to. So, for example, when a green card expires, work authorization does not. Avoid the overwhelming urge to re-verify!  Above all, do not terminate for an expired green card.
  • If you participate in E-Verify, DO NOT suspend a worker or otherwise take adverse action upon receipt of a tentative non-confirmation (TNC). Remember also that, unless you are a federal contractor, DO NOT run existing employees through the E-Verify gauntlet.
  • Do not ask non-US citizens to produce more or different documents than US citizens must provide. So, for example, if you let the latter group show any acceptable document(s) to satisfy the I-9 requirements, do not demand the former to have only USCIS-issued documents.
  • Only ask for enough to be sure and stop! So, for example, if a job applicant shows you her valid green card + a restricted Social Security card, do not refuse to hire or withdraw an offer of employment. The green card, by itself, is enough. If another potential hire pulls out an unrestricted Social Security card ( List C) combined with a valid driver’s license ( list B) , count your lucky stars and DO NOT say how about a US passport or naturalization certificate?
  • Always allow new employees to decide what documents they want to show you in support of an I-9.
  • If someone is a lawful permanent resident, do not ask for proof of US citizenship.
  • Do not require applicants to be US citizens unless there is a legal reason for such a demand- law, regulation, executive order or contract. Such an exception may and likely will be strictly enforced and narrowly interpreted.
  • Do not ask prospective job applicants to complete an I-9. Such a filtering device at this early stage can exert a chilling effect upon those who actually are able to establish their employment eligibility but are intimidated from doing so.
  • Require management approval prior to the posting of any online advertisements
  • Create an internal audit team to review online postings on a monthly basis
  • Advise recruitment personnel that deviation from approved recruitment guidelines not only will not be tolerated but will result in appropriate disciplinary actions.  Get tough!
  • Train all managers and HR personnel on the right way to complete an I-9. You might even consider inviting the Office of Special Counsel, www.usdolj.gov/crt/osc to train them.  You can even invite an OSC speaker https://www.osc.gov/outreachRequestOSCspeaker.htm . They even offer remote webinars.
  • Employers can obtain more information on immigration-related unfair employment practices by calling the OSC toll free at 1-800-255-8155 or 1-800-362-2735 for the hearing-impaired. Heck, they even have videos but you have to supply your own popcorn!
  • If your internal quality control does uncover evidence of past wrongdoing, find who the injured party was and, if possible, invite them to reapply for a new job. All such complaints of document abuse, citizenship status or national origin discrimination and retaliation should be investigated and acted upon within 30 days.
  • Do not ask employees to re-verify when an identity document, such as a driver’s license, expires. This, my friend, is document abuse.
  • Remember that asylees and those with TPS do not need an employment authorization document.  They may elect to get one to make you feel better since that is what employers are used to looking at but this is entirely optional. They can work incident to status and nothing need or should be done if and when the EAD expires. An employer who cans a TPS worker after his EAD expires ignores at its peril the overriding fact that employment authorization has been automatically extended pursuant to a DHS announcement in your friendly Federal Register. NEVER ask an asylee or TPS to re-verify.
  • Amend your employment authorization review process to include an extra level of secondary review before you reject an employee’s I-9 documents.
  • Do not sponsor any job fairs that bar non-citizens from attending or participating.
  • Always follow the Office of Special Counsel’s “Best Practices for On-Line Postings” to make sure your recruitment and hiring are clean as a whistle. https://1.usa.gov/hw2ZNE . Take it to neighborhood parties and company picnics!
  • Let your legal department look over all job advertisements before posting. Sure, they nitpick but they mean well!
  • Add an EEO statement on non-discrimination to your company website and employer handbook.
  • All advertisements should include language stating the job vacancy is open to anyone who is authorized to work in the United States for any employer and that there will be no discrimination  on the basis of citizenship status in employment.
  • Distribute a copy of the most current USCIS Employment Eligibility Verification Handbook(M-274) available on-line at https:///www.uscis.gov/files/form/m-274.pdf and the most current E-Verify Manual whose hidden secrets are waiting to be unlocked athttps:///uscis.gov/USCIS/Verification/E-Verify/E-Verify_Native_Documents/manual-employer_pdf

So there you have it fellow I-9 devotees. Do not say nobody told you. Knowing when to stop may be just as, or even more, important as starting in the first place when it comes to I-9 compliance. Now, I am pretty sure that the English social critic and writer Aldus Huxley never had to fill out an I-9 but doubtless he was thinking of one when he reminded us that “ Hell isn’t merely paved with good intentions; it’s walled and roofed with them. Yes, and furnished too.” Disclaimer: The information contained in this blog post is provided for educational purposes only, and should not be construed as legal advice or as a substitute for legal counsel. If you have questions concerning how I-9 and E-Verify rules apply to your specific situation, please seek legal advice from a licensed professional attorney.

[1] 8 CFR 274a.2 (b) (1) (v). [2] INA 274B (a) (6); Robison Fruit Ranch Inc. v. US. 147 F.3d 798(9th Cir.. 1998). [3] Diaz v. Pacific Maritime Ass’n, 9 OCAHO no. 1108(2004). [4] Simon v. Ingram Micro, Inc., 9 OCAHO no. 1088(2004). [5] U.S. v. Swift & Co., 9 OCAHO no. 1068 (May 7, 2001). [6] 6 OCAHO 830 (1995) [7] United States v. Strano Farms, 5 OCAHO 748 at 17(1995) (citing United States v. A.J.Bart Inc., 3 OCAHO 538 (1993)). [8] United States v. Lasa Marketing Firms, 1 OCAHO no. 141, 950, 971 no.21 (199). [9] McNier v. San Francisco State Univ., 8 OCAHO no. 1030, 425, 441-43 (1999). [10] Brown v. Baltimore City Public Schools, 3 OCAHO no. 480 at 4 (June 4, 1992); U.S. v. Hyatt Regency Lake Tahoe, 6 OCAHO no. 879 (May 16, 1996).

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