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Employer Requests Immigration Status of Employees in Ongoing Dispute

poultryImmigration law is deeply intertwined with employment in the United States, and the extent to which specific employment statutes apply to various immigrant statuses is under near-constant review by the courts. In the midst of this complex system, an employer involved in a dispute with the Equal Employment Opportunity Commission (EEOC) has made a rather bold accusation against some of its employees. It is claiming that the employees who complained to the EEOC are falsely claiming harassment in order to qualify for U visas, which are available to certain “victim[s] of criminal activity.” 8 U.S.C. § 1101(a)(15)(U). A recent federal appellate ruling essentially allows the employer to obtain information on the claimants’ immigration status. Cazorla, et al. v. Koch Foods of Miss., LLC, No. 15-60562, slip op. (5th Cir., Sep. 27, 2016).

Laws at the federal, state, and local levels protect employees from workplace discrimination on the basis of categories like race, sex, religion, color, and national origin. Title VII of the Civil Rights Act of 1964 protects these categories, and laws in many jurisdictions offer even broader protection. The EEOC receives complaints from employees, former employees, and job applicants about alleged unlawful conduct. After investigating the claims, the EEOC may pursue a civil enforcement action on behalf of the complainants, or it may authorize them to file suit. Title VII and most other anti-discrimination statutes do not limit their coverage based on immigration status, although the extent of the protection they offer to undocumented immigrants remains controversial.

The U visa is available to victims of certain crimes involving violence, exploitation, or fraud. 8 U.S.C. § 1101(a)(15)(U)(iii), 8 C.F.R. § 214.14(a)(9). In order to qualify, the person must have information related to the crime and must have “been helpful” to government authorities investigating or prosecuting the crime. 8 U.S.C. § 1101(a)(15)(U)(i). Only 10,000 U visas are available in each fiscal year. 8 U.S.C. § 1184(p)(2). U visas are valid for four years and may provide an opportunity to apply for adjustment of status to permanent residence.

The EEOC filed suit against the defendant in Cazorla on behalf of employees at a poultry processing plant, alleging sexual harassment and other forms of abuse under Title VII. Most of the complainants are Hispanic, many do not speak English, and some are reportedly undocumented. The defendant served discovery requests seeking information about individual complainants’ immigration status and history. The company is alleging that the complainants “made up their accusations in hopes of securing U visas,” and its request for the complainants’ immigration information is an “attempt to obtain concrete evidence of this malfeasance.” Cazorla, slip op. at 3.

The trial court allowed discovery to proceed with regard to information specifically related to any complainant’s effort to obtain a U visa, although it set limits on the use of that information. It denied the EEOC’s request to keep individual visa applicants anonymous, which formed a major part of the EEOC’s appeal. The Fifth Circuit vacated the trial court’s order but ruled that the discovery of U visa information may proceed with safeguards to keep visa applicants anonymous for the time being.

Visa lawyer Samuel C. Berger represents employers in New York City and Northern New Jersey who want to petition on an employee’s behalf for an immigrant or nonimmigrant employment-based visa. Contact us online, at (201) 587-1500, or at (212) 380-8117 today to schedule a confidential consultation to see how our experienced and skilled team can help you.

More Blog Posts:

Fashion Model Visas Gain Attention Due to Election News, New York & New Jersey Immigration Lawyer Blog, October 13, 2016

Employer’s Failure to Notify Federal Government of H-1B Employee’s Termination Results in Penalty of Nearly $183,000, New York & New Jersey Immigration Lawyer Blog, August 11, 2016

New York City Human Rights Agency to Issue Certifications for U and T Visas, New York & New Jersey Immigration Lawyer Blog, May 12, 2016

Photo credit: Bharat509 (Own work) [CC BY-SA 4.0], via Wikimedia Commons.