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Justice Department Sues Employer for Alleged Violations of I-9 Rules

1379954_49441836.jpgThe U.S. Department of Justice (DOJ) has filed a complaint against an Indiana company, alleging discrimination against authorized immigrant workers. The DOJ filed the case, United States v. Rose Acre Farms, Inc., in the Office of the Chief Administrative Hearing Officer (OCAHO) in June 2012. It alleges that Rose Acre violated antidiscrimination provisions in the Immigration and Nationality Act (INA) with its electronic system to verify its employees’ work eligibility.

The INA requires all employers to verify that its employees are authorized to work in the U.S., either by confirming that they are citizens or legal permanent residents, or by determining that the federal government has granted them work authorization. 8 U.S.C. § 1324a(b). The government created Form I-9 to enable employers to verify employment eligibility quickly. Employees must produce documentation to establish both their identity and their work authorization.

The I-9 gives employees the option of producing a document in “List A” that confirms both identity and work authorization, such as a U.S. passport, a properly-stamped foreign passport, or a permanent resident card. An employee may instead produce one “List B” document, confirming identity, and one “List C” document, confirming work authorization. List B documents may include a driver’s license or other government-issued identification. List C documents include unrestricted Social Security cards and birth certificates. Employers must obtain copies of the employees’ documents and retain them in their employment files. The E-Verify program allows participating employers to collect and store I-9 information electronically, and to compare information against a series of databases.

Employers may not discriminate against employees or job applicants based on national origin or citizenship status, pursuant to the INA. Employees have the right to choose which documents to present to fulfill I-9 verification. The INA expressly prohibits employers from demanding different documents than those listed on the I-9, or more documents than the I-9 requires, calling this an “unfair immigration-related employment practice.” 8 U.S.C. § 1324b(a)(6).

The DOJ alleged in its complaint that Rose Acre, an Indiana-based egg producer, unfairly discriminated against immigrant workers in violation of the INA. Rose Acre used software marketed as “nowHIRE” that combined the processes of collecting I-9 information and accessing E-Verify. The company allegedly required immigrant workers to produce specific List A documents, but did not have similar requirements for U.S. citizens. The nowHIRE system, according to the complaint, generated a different list of acceptable documents depending on whether the user was identified as a citizen or not. This practice allegedly continued from June 2009 until October 2011. During that time, the DOJ alleges, 99.1 percent of the non-citizens hired produced List A documents, while only 0.66 percent of citizens hired did so.

The complaint to the OCAHO, announced by the DOJ on June 19, 2012, accuses Rose Acre of document abuse in the process of verifying employment eligibility. It requests that the OCAHO appoint an Administrative Law Judge (ALJ) to conduct a hearing, and that the ALJ grant relief to any employment-eligible non-citizen workers who suffered harm because of the alleged practices.

The immigration attorneys of Samuel C. Berger, P.C. help immigrants seeking visas to work for, or invest in, a New York or New Jersey business, and help businesses petition for skilled immigrant employees. To schedule a consultation with one of our attorneys today, contact us online or at (212) 380-8117.

Web Resources:

Complaint (PDF file), United States of America v. Rose Acre Farms, Inc., Office of the Chief Administrative Hearing Officer, June 19, 2012
More Blog Posts:

ICE Fines New Jersey Business Over $600,000 for Immigration Employment Violations, New York & New Jersey Immigration Lawyer Blog, September 21, 2012
New York Company Joins Federal Immigration Compliance Program, New York & New Jersey Immigration Lawyer Blog, May 4, 2012
USCIS Announces Revisions to Form Used to Verify Employees’ Eligibility to Work, New York & New Jersey Immigration Lawyer Blog, March 29, 2012
Photo credit: ‘eggs’ by kwod on stock.xchng.