6 June 2019 2 PM (U.S. Eastern) - Worldwide ERC · 90 days from the first day of work: An unexpired...

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6 June 20192 PM (U.S. Eastern)

Navigating the Anti-Discrimination and Unfair Documentary Practices Under the INA

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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

» Enforcement

» Policy

» Outreach

Scope of IER’s Work

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

Citizenship Status Discrimination

» Hiring» Firing» Recruitment or

referral for a fee

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.

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.

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

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.

IER’s Protecting U.S. Workers Initiative

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.

National Origin Discrimination

» Hiring» Firing» Recruitment or

referral for a fee

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.

Unfair Documentary Practices

» Form I-9» E-Verify

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

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

Form I-9 Section 1

Worker completes Section 1 afteraccepting a job offer and by the first day of work.

Form I-9 Section 1 Attestation Boxes

Points on Aliens Authorized to Work

Form I-9 Section 2

Employer completes Section 2 within three business days of the worker’s start date.

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

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.

Common Document Questions

EAD automatic extensions

Receipts for lost, damaged, and

stolen documents

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”)

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.

Form I-9 Section 3

Example of Documents that Require Reverification

Temporary VisasEmployment Authorization Documents

Temporary I-551 Stamps

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

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.

Form I-9 Section 3

Employers should never reverify:

» List B documents

» Permanent Resident Cards

» U.S. Citizens’ documents

» U.S. Nationals’ documents

Social Security Numbers

» SSA, IRS, USCIS guidance» Call IER for assistance

Working While Waiting to Receive SSN

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.

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

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

Retaliation

» Intimidation» Coercion» Threats

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.

IER Enforcement Process

Charge or Independent Investigation

Dismissal Settlement Lawsuit

Investigation

Possible Remedies

Hire or rehire Back pay

Training Monitoring

Policy changes Civil penalties

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

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

6 June 2019 2 PM (U.S. Eastern) - Worldwide ERC · 90 days from the first day of work: An unexpired...

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