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Justice Department Warns Employers About Investigating Employment Eligibility Documents

1909_Tyee_-_Faculty_Foot.jpgEmployers are required by federal immigration law to verify their employees’ eligibility to work in the United States. The U.S. Department of Justice (DOJ) warned employers late last year, however, that employers should be careful when investigating employees’ proof of eligibility. Federal law only requires employers to review certain documents to determine whether they appear facially valid. Further investigation could expose employers to liability, also under federal immigration law, for discrimination based on immigration status or national origin. New York and New Jersey immigrants and employers alike should be aware of these laws and how they impact their rights and obligations.

The government has promulgated a form for employers to use with all employees and new hires called Form I-9, Employment Eligibility Verification. Employees must submit one or two documents to establish identity and work eligibility. A U.S. passport, green card, or employment authorization card, known as “List A Documents,” would demonstrate both elements. A driver’s license or other form of identification, known as “List B Documents,” would be acceptable along with a “List C Document” like a Social Security card or birth certificate. Employers must retain I-9 forms in their records for three years after the employee’s hire date or one year after the termination date, whichever is later.

Federal immigration law prohibits employers from knowingly hiring or continuing to employ immigrant workers without work authorization under 8 U.S.C. § 1324a. Violations of these provisions can results in civil fines, criminal fines, or even imprisonment. The law also imposes monetary penalties for failing to retain I-9 records. The law also, however, prohibits employers from discriminating against employees based on national origin, citizenship status, or other legally-protected categories in 8 U.S.C. § 1324b. Problems may arise when an employer investigates an employee’s work authorization beyond the basic Form I-9 review.

In a letter (PDF file) dated December 30, 2013, the DOJ’s Office of the Special Counsel (OSC) for Immigration-Related Unfair Employment Practices warned about violations of § 1324b while investigating employees’ work eligibility. An employer is only required by § 1324a(b)(1)(A) to verify that an employee’s Form I-9 documents “reasonably appear[] on [their] face to be genuine.” If an employer conducts an internal audit of employment eligibility or requests additional documents from employees, it must apply “consistent standards” to all employees, according to the OSC, to avoid § 1324b violations.

Courts in New Jersey and New York have held that § 1324b requires an administrative procedure with the OSC before any court may review an employee’s discrimination claims. See Shah v. Wilco Systems, 126 F.Supp.2d 641, 648 (S.D.N.Y. 2000); Shine v. TD Bank Financial Group, No. 09-4377, opinion (D.N.J., Jul. 12, 2010). An OSC investigation in New Jersey, for example, resulted in a settlement with a home health care provider that allegedly applied different standards for verifying the employment eligibility of permanent residents than U.S. citizens. The OSC may also file suit on behalf of complainants once its administrative review is complete.

Immigration visa lawyer Samuel C. Berger represents individuals, families, and businesses in the New York and New Jersey areas. We advise families and businesses on how to petition to bring immigrant relatives and employees to the U.S., and we help immigrants who have already made their home here obtain visas and green cards. To schedule a confidential consultation to see how we can assist you, please contact us today online or at (212) 380-8117.

More Blog Posts:

Immigration News for New Jersey Employment-Based Immigrant Visa and Temporary Worker Visa Petitioners, New York & New Jersey Immigration Lawyer Blog, February 5, 2014
Courts Allow Undocumented Immigrants to Sue for Wages Under FLSA, State Labor Laws, New York & New Jersey Immigration Lawyer Blog, December 17, 2013
Employers Must Completely Fill Out I-9 Employment Eligibility Verification Forms or Risk Penalties, According to Court, New York & New Jersey Immigration Lawyer Blog, December 3, 2013
Photo credit: Olaf E. Caskin [Public domain], via Wikimedia Commons.