Employers are required to complete and retain a Form I-9 for each individual hired. As part of this process, employers verify the individual’s identity and employment eligibility by reviewing supporting documents and recording the information on the Form I-9. On its face, it might seem like a simple step for an employer to review a document, such as a passport or an Employment Authorization Card, and record the information on the Form I-9. Still, time and time again, employers face big fines for missteps in the process.
In April 2014, the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) settled cases against three companies for discriminatory practices in violation of the Immigration and Nationality Act (INA), resulting in civil penalties ranging from $43,000 to $115,000 and continued monitoring.
The department’s investigations concluded that SK Food Group and Potter Concrete unlawfully required noncitizen hires to produce specific and select documents to prove employment eligibility while U.S. citizens were permitted to choose which documents to produce from a list attached to the Form I-9.
The investigation further revealed that Potter Concrete selectively used E-Verify, an employment eligibility verification system maintained by the U.S. Department of Homeland Security, to confirm employment eligibility only for individuals believed to be non-citizens.
Meanwhile, the Department of Justice concluded that Mexico Foods LLC unlawfully required employees who are lawful permanent residents to present new employment eligibility documents when their Permanent Resident cards expired. Lawful permanent residents have permanent work authorizations even after their Permanent Resident cards expire and are not subject to the re-verification process. Such practices are prohibited under the anti-discrimination provision of the INA.
Employers should take note of the importance of getting it right when it comes to employment eligibility verification or else face fines and government scrutiny. With proper training and routine self-audits of I-9s, these companies might have identified and ended such unlawful practices before they resulted in a government investigation.
If you have questions about ensuring compliance in work authorization and immigration matters, McGuireWoods can assist you. Our attorneys offer experience and skills in advising companies on proactive measures, such as setting up and conducting I-9 audits, and defending companies facing notices of inspection and government investigations.