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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Legally Unfair

by William Henry Humble III

Frightening are the consequences for lack of compliance with immigration related employment laws: investigations, audits, civil penalties and worst of all, criminal prosecution. If I were an employer I would want to keep myself and my company safe from such consequences. I would feel compelled to treat differently every employee or job applicant who looks or sounds even the slightest bit "foreign."

Well, Congress anticipated this reaction. Any employment decision that treats similarly situated employees unequally is unfair discrimination. To make sure unfair treatment isn't unjust, Congress enacted laws regarding what employers can and can't do.

Unfair treatment is illegal if the employment decision is based on…
  • National origin or
  • Citizenship status (hereafter "work authorization status") of a protected individual 1.
Who is a Protected Individual?

A protected individual (hereafter "PI") is a U.S. citizen, resident, refugee or asylee. This list sounds simple, but for a resident it gets complicated. All types of residents - temporary, conditional, permanent - are PIs. The catch is that if I'm a resident and I fail to apply for naturalization within six months of becoming eligible, I'm NOT a PI anymore. If I timely apply for naturalization, I AM still a PI. If I fail to successfully naturalize within two years of timely applying (not including CIS processing time), I'm NOT a PI anymore. If I'm still actively pursuing naturalization, I AM still a PI 2. Whew!

What CAN and MUST an employer do?

  • An employer MUST require I-9 documents of all new employees 3. The paperwork requirements are the same for U.S. citizens and non-citizens alike. PIs and non-PIs. That's only fair.
  • An employer MUST treat equally all PIs. To be safe, though, an employer should treat equally all similarly situated employees, regardless of PI status. The equal treatment should be at all phases of employment, even before hiring: recruiting, interviewing, hiring, verifying employment eligibility, beginning employment, setting/changing terms (compensation, privileges, conditions, promotion, assignment), and ending employment (firing, laying off, terminating).
  • An employer CAN prefer a U.S. citizen over an equally qualified non-citizen,
    even a PI 4.

  • Obviously where U.S. citizenship is required by law for a specific position, an employer MUST hire U.S. citizens 5. That's lawful discrimination against non-citizens. That's not fair, but it IS legal.

What CAN'T an employer do?

  • An employer CAN'T adopt a blanket policy of always preferring U.S. citizens. That would be work authorization status discrimination against non-citizens, some of whom may be PIs. To be fair, preferring a citizen must be on a case-by-case basis, to fill a specific position.
  • An employer CAN'T base employment decisions upon a person's national origin. That's unfair and unlawful. Basing an employment decision upon a person's work authorization status is also unfair and unlawful IF the person is a PI. If I'm not a PI, that's lawful unfair immigration related employment discrimination. For example, it may be unfair to prefer a U.S. citizen over an equally qualified alien, but that's legal.
  • An employer CAN'T retaliate against a protected individual for asserting his or her anti-discrimination rights.
  • An employer CAN'T commit document abuse.

Document Abuse: What NOT to do

The Form I-9 lists what documents are acceptable to show identity and work authorization.

  • An employer CAN'T request documents before hire.
  • An employer CAN'T specify which documents are acceptable.
  • An employer CAN'T require more documents than required by Form I-9.
  • An employer CAN'T refuse to honor acceptable documents.

The employee - and by definition that means after being hired - must be free to pick which document or combination of documents to present to show work authorization. Anything that limits that freedom is document abuse 6.

What happens if the unfair immigration related employment practice is illegal?

  • Investigation. These can/can't laws are enforced by the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC). The OSC is under the Department of Justice, Civil Rights Division. The OSC handles work authorization discrimination claims where there are four or more employees, and national origin claims where there are 4-14 employees 7. Even where no victim can be identified, the OSC conducts independent investigations of employer practices.

  • Litigation. In most cases, the employer and the charging party (OSC or the unlawfully discriminated-against employee) enter into a settlement agreement. If they don't, the case goes before the Office of the Chief Administrative Hearing Officer (OCAHO), which is under the Department of Justice, Executive Office for Immigration Review. The OCAHO can order an employer to stop a prohibited practice and to take corrective steps which include but are not limited to the following:

  1. Hire or reinstate with retroactive seniority the unlawfully discriminated-against person.
  2. Post notices to employees about their rights and the employer's obligations.
  3. Educate/train personnel regarding…
  4.           Anti-discrimination laws;
              Employment eligibility verification procedures; and
              Diversity awareness to increase cultural sensitivity.

What are the possible fines, fees, and costs?

  • Back and Front Pay. Actual damages for the money that should've been paid. Future monetary losses for the money that would've been paid.

  • Civil Fines. For document abuse, the fine ranges from $110-$1,100 per violation. For other unlawful discrimination, the fine ranges from $275-$2,200 per person for the first violation, $2,200-$5,500 per person for the second violation, and $3,300-$11,000 per person for the third or more violation 8. Where intentional unlawful discrimination is found, compensatory damages may even be levied for inconvenience and mental anguish 9. Where malice or reckless indifference is found, an employer can be ordered to pay punitive damages 10.

  • Attorney Fees. The employer must pay its own defense counsel, but it can also be ordered to pay the attorney fees of the unlawfully discriminated-against person 11. There may be additional fees for expert witnesses and expenses.

  • Court Costs.

Hypothetical Scenarios

What if I hire Miss Lin because she's Chinese instead of Mr. Wakabayashi because he's Japanese?

That's illegal. My employment decision can't be based upon the person's national origin, because that's unfair and unlawful discrimination.

What if I'm running a Chinese restaurant? There is an exception for national origin discrimination 12, where "national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise" 13.

What if I lay off Simon, whose L-1 visa will expire in two years, instead of equally-qualified Martin, whose H-1B visa will expire in one year?

That's legal. Here my employment decision is not based on where they're from - I learned to not do that in the Lin/Wakabayashi debacle. In both of these scenarios we have unequal treatment of similarly situated employees. Keeping Simon and letting go of Martin is unfair discrimination, but unlike the first scenario, it's legal. Why? Because my decision is based on work authorization status and Martin is not a protected individual.

Unfair immigration related employment practices are a reality for today's companies, and Congress recognizes that reality. We can't always be fair, and we shouldn't have to be. Sometimes good business isn't fair. That's why some unfair practices are legal.

  • What if Martin is a permanent resident? He's a PI.
  • What if he failed to timely apply for naturalization once eligible? He's NOT a PI.
  • What if he timely applied and the naturalization case is pending? He IS a PI.
  • What if he failed to naturalize within two years? He's NOT a PI.
  • What if he's still actively pursuing naturalization? He IS a PI. Whew!

What if I give Boris more time to present his original documents because he sent them to the U.S. Department of State for a passport?

That's illegal. Yes, Boris is a U.S. citizen and a PI. Yes, I can prefer a U.S. citizen on a case-by-case basis. But more time for Boris is unfair discrimination against my other employees. By law, original I-9 documents must be presented within three business days of hire. To be fair and legal, the paperwork requirements are the same for everybody, citizens and PIs or not.

Exceptions: A certified copy of a birth certificate is acceptable. Also acceptable is an original receipt notice which proves that the employee filed an application to replace an original document that was lost, stolen or damaged (as opposed to an application for an initial or renewed document) 14. The employee then has 90 days from the date of hire/reverification to submit the replacement original 15.

What if I reject Anastasia's Permanent Resident Card because it's expired?

That's illegal. The instruction page of Form I-9 states that "[t]he refusal to hire an individual because the documents presented have a future expiration date may also constitute illegal discrimination." May? So how do I know when it does? Easy: When national origin is the basis of the refusal, or when the individual is a PI.

Do NOT use a document's future expiration date to decide whether an employee or job applicant…
  • Is qualified for a particular job
  • Has continuous work authorization
  • Will be granted future work authorization

In Anastasia's case, she's a resident, so she's probably a PI. Let's assume for the sake of this scenario that she's not yet eligible for naturalization. To require additional documentation of Anastasia and not of other similarly situated employees would be unequal treatment and unfair discrimination on the basis of her work authorization status. It would also be illegal document abuse.

If I'm a U.S. citizen, when my passport expires I don't stop being a citizen. Likewise, when Anastasia's Permanent Resident Card expired, she didn't stop being a resident. That's why the list of acceptable I-9 documents doesn't say anything about the Permanent Resident Card being unexpired. That's also why reverifying a permanent resident's work authorization is unfair and unlawful.

What if Francois shows me a driver license and an unrestricted SSN card, but he speaks English with a heavy accent?

A. Proceed with employment only if he's a PI
B. Ask for his passport
C. Ask him to present any document from Column A
D. Honor his documents

"A" depends on whether he's a PI. If I proceed with employment because he's a PI, that's legal. If I refuse to proceed with employment, that's work authorization status discrimination and legal because he's not a PI. But my refusal might lead Francois to accuse me of national origin discrimination which is illegal. Tricky.

"B" and "C" are illegal because it's unfair discrimination in the form of document abuse to specify which documents I will accept or to require additional documents. Francois must be free to choose which document or combination of documents to present.

"D" is legal. And it's the best answer.

What if Maria presents a driver license that says "Maria L. Fuentes" and a SSN card that says "Maria F. Lopez"?

A. Ask to see documentation of the name change
B. Ask her to present I-9 documents that match each other
C. Ask her to explain the name difference
D. Ignore the difference if she's a PI

"A" is illegal. I can't tell her to present any specific or additional document. Even a marriage certificate. That would be unfair discrimination in the form of illegal document abuse.

"B" is illegal. Neither the law nor the I-9 List of Acceptable Documents say anything about documents having to match.

"C" is legal. I can ask Maria to explain the name difference, so long as I treat everybody equally. For example, if I question Maria but I don't ask Sven Erikson to explain why his document says "Sven Sundgaard," that's not fair to Maria. She might accuse me of national origin discrimination.

"D" misses the point. Whether Maria is a PI is irrelevant.

What if Juliette mentions, during the job interview, that she is not a U.S. citizen?

A. Terminate the interview
B. Ignore her comment and proceed with the interview
C. Ask to see her documents
D. Ask if she is authorized to work for any U.S. employer

"A" might be legal, but it might not, depending on why I terminate the interview. If it's because of where she's from, of course that's illegal. If it's because I'm preferring a U.S. citizen over her, to fill a specific job opening, that's legal.

"B" is legal, but to be fair and legal to the other interviewees, I must react equally with all interviewees.

"C" is illegal. I can't require documents before hire.

"D" is legal. I can ask for information. I just can't ask for documents. I can and must treat equally all PIs, but at this point I don't know if Juliette's a PI. To be safe, I should treat her and all the other interviewees the same. Did Juliette check "yes" to this question on her job application form? 16 I shouldn't have to ask Juliette if she has unrestricted work authorization, but that's the reality in America today. That's why we have articles like this one!

How do I know whether my unfair immigration related employment decision is lawful?

The answer depends upon the basis for the decision and, if the basis is work authorization status, it depends upon the status of the employee as a PI or non-PI.

Let's say a French company asks for my legal advice regarding two Italian employees who will be temporarily without work authorization. Giving Fabrizio ninety days unpaid leave while terminating Giovani outright is an unfair immigration related employment decision. It results in unequal treatment, so it is unfair discrimination. Is it unlawful? The basis of the decision is work authorization status, and Giovani is not a PI. Using the table below, I see that it's legal.

Intersect Basis (below) and Status (right) for lawfulness
National Origin
Work Authorization Status

Protected Individual
Illegal
Illegal

Non-Protected Individual
Illegal
Legal!

In a similar case against Fendi, the employee who was situated similarly to my fictitious "Giovani" still sued Fendi, accusing the French company of being anti-Italian. Well, his national origin discrimination argument lost 17. Still, Fendi might have avoided this by equal treatment for all similarly situated employees.

Conclusion

I recommend that a company's comprehensive compliance program include, in addition to the other elements of immigration compliance, steps to make sure that any unfair immigration related employment practices are legally unfair.

©2008, W. Humble

End Notes

18 USC 1324b(a)(1); Immigration and Nationality Act (INA) 274B(a)(1).

28 USC 1324b(a)(3); INA 274B(a)(3).

3Immigration Reform and Control Act of 1986, and Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208 (09/30/1996), as amended by 62 FR 511001-51006.

48 USC 1324b(a)(4); INA 274B(a)(4).

58 USC 1324b(a)(2)(C); INA 274B(a)(2)(C).

68 USC 1324b(a)(6); INA 274B(a)(6).

7Where there are 15 or more employees, national origin discrimination claims are handled by the Equal Employment Opportunity Commission.

8 See Citizenship and Immigration Services Form M-274 page 18.

9 See Title VII of the Civil Rights Act of 1964.

10 Id.

11If the employer's defensive argument is without reasonable foundation in law and fact. 8 USC 1324b(h); INA 274B(h).

128 USC 1324b(a)(2)(B); INA 274B(a)(2)(B).

1342 USC 2000e-2(e)(1).

148 CFR 274a.2(b)(1)(vi). See also Citizenship and Immigration Services Form M-274 page 24.

158 CFR 274a.2(b)(1)(vi)(A)(3).

16 In his 08/06/1998 opinion letter, the OSC Special Counsel stated that the following new hire screening questions would not expose an employer to discrimination liability: "A) Are you legally authorized to work in the U.S.? B) Will you now or in the future require sponsorship for employment visa status (e.g. H-1B visa status)?" If the applicant responds that sponsorship would be required, it would not be discriminatory for the employer to refuse to hire such applicant.

17 See Incalza v. Fendi North America, Inc., 479 F3d 1005 (9th Cir. 2007).


About The Author

William Henry Humble III is an attorney at the firm Judith G. Cooper, P.C., in Houston, TX, where he practices exclusively immigration and nationality law. Before coming to Houston he practiced in Dallas, San Antonio, and New York City. Mr. Humble can be reached by email at whumble@immigration-visas.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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