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                                                                        March 14, 2002

Honorable F. James Sensenbrenner, Jr.


Committee on the Judiciary

Congress of the United States

House of Representatives

2138 Rayburn House Office Building

Washington, DC 20515-6216

Dear Congressman Sensenbrenner:

Thank you very much for inviting me to testify at the hearing on “The INS and Office of Special Counsel for Immigration-Related Unfair Employment Practices” before the Sub-Committee on Immigration and Claims. I firmly believe that my testimony will provide a working example of the difficulties which American employers encounter in their efforts to comply with the rigid requirements imposed upon them for the hiring of legal immigrants. I will also provide a glimpse into the difficulties with which my Companies were faced as a result of long and arduous litigation instituted by the Office of Special Counsel against my Companies as a result of perceived violations of the Immigration Reform and Control Act of 1986.

Fairfield Textiles Corporation, as well as a related company, Fairfield Jersey, Inc. (both owned principally by me) are engaged in the knitting and dyeing of fabric. Fairfield Textiles Corporation, has been in existence since 1976; and Fairfield Jersey, Inc. has been in existence since 1984.

The American textiles industry is presently suffering a severe economic downturn, caused by various factors including, but not being limited to, difficulties in competing with offshore competitors. Prior to the commencement of this downturn, and as late as 1995, my Companies operated on a 24-hour basis, 7 days per week, and employed as many as 400 people at one time. The large majority of my work force has always consisted of immigrants.

The supervisory personnel working for my Companies, whose job duties include the hiring of new employees, have always been directed to hire only individuals who are authorized to work in the United States. This policy became even more important to me as a result of the following:

In or about 1991, the United States Immigration and Naturalization Service (INS) conducted what can only be described as a “raid” upon the facilities operated by Fairfield Textiles Corporation in Fairfield, New Jersey and Paterson, New Jersey. I have no reason to believe that this was anything but a random raid. In that raid, the INS literally surrounded the plants; entered the plants, and took into custody employees who appeared by physical characteristics to have been born outside of the United States. Each of those individuals was asked to verify his or her identity and legal residency status. At the same time, employment records maintained by Fairfield Textiles Corporation on each of the questioned employees were reviewed by the INS representatives.

While a number of the employees questioned were determined ultimately to be illegal aliens, the documentation which each of those illegal aliens had earlier presented to Fairfield Textiles Corporation appeared reasonably valid upon their face; and for that reason, not one summons – not one notice of violation -- was issued by the INS to Fairfield Textiles Corporation.

However, the raid occurred at the height of Fairfield Textiles Corporation’s busy season. As such, it caused a precipitous and serious interference with my Company’s ability to meet its contractual requirements for its customers. I immediately contacted my attorney, Dennis J. Smith, Esq., and asked him to intercede on my Company’s behalf and to inquire why my Company was the subject of a raid. Mr. Smith advised that his inquiries on our behalf were met with nothing short of insults. For example, when Mr. Smith identified himself in a telephone conversation with the INS as the attorney for Fairfield Textiles Corporation, and asked as to the basis of the actions of the INS in conducting the raid, Mr. Smith was told simply that since he was an attorney, it was up to him to find out the answers himself.

Because of the traumatic impact caused by the INS raid upon my Companies (both in terms of their ability to meet their contractual obligations, as well as their inability to replace, on a moment’s notice, the portion of their work force who were determined by the INS to be illegal aliens and who never return to work), I needed to ensure that we would do all that we could in the future to ensure that we never hired, even unwittingly, an illegal alien. My Companies simply could not afford any further disruption to their business.

Accordingly, I issued a verbal directive to my Plant Supervisor and to the other supervisory personnel whose job duties included the hiring of new employees. This directive required them to redouble their efforts at the hiring stage to ensure that my Companies did not, even unwittingly, hire illegal aliens. My intent in issuing this directive was to ensure that my Companies would never again suffer the traumatic impact of a loss of a portion of its work force as a result of unwitting violations of the law pertaining to the hiring of illegal aliens.

In October 1998, my Companies received a letter from the Civil Rights Division of the United States Justice Department. In that letter, my Companies were advised that the Civil Rights Division of the Justice Department had received a charge by an individual who alleged that she was discriminated against by Fairfield Jersey, Inc. and that she was “not hired based on her citizenship status, while the Company prefers to hire undocumented workers”. The Government asked my Company to respond informally, indicating that if my Company refused to do so, subpoenas would follow. Accordingly, I directed the appropriate individuals at my Company to engage in an informal production of documents to the United States Government. These documents included a letter response to the charge; a copy of the partially completed employment application of the Complainant with related documents; and, as per the request of the Justice Department, copies of all employment eligibility verification forms (Forms I-9) collected and/or re-verified by the Company since January 1, 1998, together with copies of supporting documentation in which instances such photocopies were made. (January 1, 1998 was approximately 10 months prior to the date of the letter from the Justice Department.)

I asked my attorney to seek the right to interview the Complainant. I was advised by my attorney that his request was denied, since he was told that, at that stage of the investigation, a personal interview of the Complainant would not be granted.

After the informal discovery of documents by the Justice Department was completed, the Government asked to take the deposition of two employees at Fairfield Textiles Corporation. My attorney was advised that if this deposition was not agreed to, a formal complaint would be filed by the United States Government, pursuant to which these depositions would occur anyway. Therefore, I advised our attorney to permit the depositions on a consensual basis. I frankly was proud of the efforts which my Company was making to ensure that it did not hire illegal aliens; and therefore had nothing to fear from having my employees give depositions. The depositions took place on February of 1999.

Subsequently, in late March 1999, the Justice Department, in a letter to my attorney, advised that there was “reasonable cause to believe that Fairfield Jersey Company has violated [applicable Federal law] by engaging in an unfair immigration-related employment practice.” The letter stated that, “specifically, this office has determined that Fairfield Jersey engaged in document abuse by rejecting the employment eligibility verification purposes the charging party’s unrestricted Social Security card which reasonably appeared to be genuine on its face.” The letter went on to say that the Justice Department “may file suit against Fairfield Jersey on [the charging party’s behalf]; but solicited the cooperation of our Company to enter into “corrective action” without contested litigation. Accordingly, the Government demanded that our Company agree to the following terms:


1.That it would agree that henceforth its hiring practices shall not discriminate based upon citizenship status or constitute document abuse.


2.That it pay a civil penalty of $2,000.00.


3.That it agree to hire the charging party.


4.That it would pay back pay to the charging party in the amount of $7,451.00.


5.That it would send a notice and educate each of its hiring and recruitment personnel about the applicable law.


6.That it would post a notice concerning these facts in all of its personnel offices and distribute the notice to all employment applicants for a period of one year.


In response, I directed our attorney to advise the Justice Department that:


1.Our Company will agree that its hiring policies and practices shall be maintained in accordance with the law.


2.It will agree to educate its hiring personnel about the law.


3.It will post a copy of any written notice which it will provide to its hiring personnel about the law.


4.However, it would not admit any violation of the law.

I would like the Committee to note that my position with respect to the demand by the Justice Department was based upon several factors, the most important of which were:


1.My certainty that my Company never intentionally discriminated against anyone in the hiring process. Any fair-minded person who visited by Companies’ plants would be struck by the large number of immigrant employees on our work force.


2.I was born in Europe and spent my childhood in Germany during World War II, my family having fled from the Russians into Germany. As such, I am personally and fully aware of the horrors of discrimination; and have ensured that my Companies have conducted themselves in such a manner as to ensure fair treatment to everyone, free of any discrimination. Based upon these principles, I felt that the Government was acting inappropriately. I felt morally obligated to stand up to the Government in this instance.

As an obvious result of my position, in May 1999, the Office of Special Counsel of the Civil Rights Division of the United States Department of Justice filed a complaint against Fairfield Textiles Corporation and Fairfield Jersey, Inc. with the Office of the Chief Administrative Hearing Officer, United States Department of Justice, Executive Office for Immigration Review. That complaint alleged that my Companies discriminated against the “charging party” based upon her perceived citizenship status, and committed “documentation abuses” against the charging party. The complaint also alleged that my Companies engaged in a “pattern or practice of citizenship status discrimination and document abuse against job applicants they perceived to be aliens.” Specifically, the complaint alleged that my Companies improperly verified the Social Security Numbers of job applicants whom they perceived to be non-U.S. citizens.

As a result of this complaint, a long and arduous lawsuit followed. That lawsuit taxed not only the financial strength of my Companies; but attacked my personal pride in being an American citizen. That lawsuit continued until September 2001, when it was ultimately settled. Under the terms of the settlement, my Companies agreed to do everything they agreed to do at the time of the initial demand by the Justice Department in 1999; but, in addition, they agreed to pay the charging party the sum of $12,470.40 and to pay a civil penalty to the United States Treasury in the amount of $1,100.00.

Those sums of money are only part of the story. My pride in being an American, and my refusal to buckle under the demands of the Justice Department in this lawsuit cost my Companies approximately $93,776.97 in legal fees and related costs.

As the lawsuit developed, and as the charges of the Justice Department became more apparent, it became clear that the remedies which the Government was seeking went far beyond the charging party’s initial complaint. For example, the complaint sought an Order which would require my Company to “instate and make whole each and every other work authorized individual who may have been denied employment as a result of [my Companies’] illegal actions, including all back pay and retroactive employee benefits and seniority loss as a result of [my Companies’] illegal actions, including interest.”

In the litigation, discovery demands were made by the United States Government, which demands showed clearly that the Government intended to proceed far beyond the actual charge; and to engage in what can only be called a fishing expedition through my Companies’ records; in an attempt to try to find some violation by my Companies which would render them subject to punishment. For example, one of the document demands required the production of “all documents relating or referring to Respondent’s policies and/or procedures since November 30, 1994 completion of INS Form I-9….” Another required blank copies of all documents disseminated or required to be completed by employment applicants from August 1, 1996 to the present. Another demand required a copy of our Company’s most recent balance sheets, income statements, annual report to shareholders, and Federal Corporate Income Tax Returns – information which had nothing to do with the charges claimed.

As the case developed, the Government continued to raise its stakes. In fact, as of February 2000, the Government advised our Companies that, in order for the Government to dismiss its complaint, our Companies would have to pay the United States Treasury $77,700.00, and would have to pay the charging party $16,291.00. The penalty portion of this demand was based upon the Government’s assertion that my Companies had committed document abuse in 111 instances; that the statutory fine permitted for each such violation was $1,100.00; but that, as a measure of “compromise” the Government would demand only $700.00 per violation.

At the same time that this demand was received, the Government issued subpoenas to seven current and former employees of my Companies, requiring their depositions. The Government further advised that it was intending to demand copies of all payroll records for my Companies’ entire work force for a four-year period, so as to permit it to cross-check the I-9 forms which we had submitted to the Government with the Companies’ entire payroll records. In addition, the Government advised our Companies that, from the review of the documents which we had given to the Government in response to its demands, the Government had determined that 65 workers who had either been hired, or who had applied for jobs and not been hired, had not been identified on I-9 forms which my Companies delivered to the Government. The Government in asserting its failure to obtain I-9 forms was a violation of law, threatened that if the matter were not settled, the Government intended to search for each of the 65 individuals, interrogate them, and determine what documents, if any, they gave to the Companies. Presumably, if the number and type of these documents violated the law, my Companies would be exposed to further fines.

I interpret these efforts on the part of the Government as intimidation – nothing more and nothing less. My resolve only strengthened and I determined not to buckle under these unreasonable demands.

The litigation continued in this vein, until it became apparent to the Government, that the economic downturn in the textiles industry, as well as the onset of a recession, rendered my Companies less attractive as a source of substantial fines. Only when that fact was understood by the Government, did this matter settle under the terms as described above.

As a result of the litigation, I have become painfully aware of the law on which litigation was based. My attorney has explained it to me over and over again, but, I must confess it makes no rational sense to me. It is my understanding that my Companies were sued, and forced to pay a penalty, as a result of something called “document abuse”. As I understand it, the law permits a prospective employee to choose which document he or she wishes to present to a prospective employer from a list of acceptable documents shown on the back of the Form I-9. An employer is not permitted to request that a particular employee/applicant present more or different documents than are required. Further, the employer is not permitted to refuse to honor documents which, on their face, “reasonably appear to be genuine” and to relate to the person who presented them.

I have carefully reviewed the provisions of the Form I-9. As this Committee is clearly aware, the back of the I-9 Form has three columns: “List A”; “List B”; and “List C”. List A identifies documents that establish both identify and employment eligibility. If a prospective employee presents one document from List A, it is my understanding that it is unlawful for the employer to then ask for any further documents. Any such request is a violation of Federal law, and is defined as discrimination under the law. It can lead to the imposition of a fine of up to $2,000.00 for each such violation.

Compliance with these rigid requirements presents substantial problems to my Companies – and presumably to other American companies. In my business, most of the applicants who seek employment are unskilled. However, the operations of my plant involve the use of machinery ranging from state-of-the-art knitting machines to boilers to dyeing machines. As can be anticipated, each person who is hired by my Companies has to be trained for his/her position. Training takes time and effort – which, of course, translates into money. If after a person is hired, our Companies learn that that person is an illegal alien, or that the documents submitted by that person to prove employment eligibility are in fact fraudulent, my Companies must immediately terminate that person or stand the risk of violating Federal law.

It would make perfect sense, therefore, for an employer to be able to determine with as much finality as possible, the employment eligibility status of a prospective employee before an employee is hired. However, as I understand the process, that is not permitted.

What conduct caused my Companies to run afoul of the law? In a nutshell, it was the following:

My supervisory employees, in an effort not to run afoul of INS’ requirements – and mindful of the INS “raid” in 1991 upon our Companies, consistently use the employment application process to obtain as many documents as possible, rather than as few documents as permissible to prove employment eligibility.

I will give you an example:

If a prospective employee produced an alien registration card which, on its face, appeared valid, then, according to Federal law, the supervisor interviewing that prospective employee can ask for no further documents. However, the sad truth is that it is quite possible for someone to purchase another person’s fraudulent documents. As a result, the supervisor interviewing a prospective employee who tendered, for example, an alien registration card during the I-9 process, would routinely ask for some other form of identification, such as a driver’s license containing a photograph; or a Social Security card. Once that supervisor saw such documents which crosschecked with each other, he would feel reasonably satisfied that the person before him was indeed the person referred to on the documents; and the hiring would be permitted to occur.

That conduct, however, is evidently a violation of the law. This is because an alien registration card is on “List A” of the list of acceptable documents for I-9 purposes; and the driver’s license with a photograph is on “List B”. A Social Security card is on “List C”. Once a “List A” document is provided, the mere request by the employer for either a “List B” document or a “List C” document results in a violation of the law.

Another example:

For an employee under the age of 18, a report card from his school is a “List B” document. If such a proposed employee submitted a report card as well as a Social Security card, my supervisory employees are suppose to accept those documents as proof of employment eligibility. However, it is routinely known that documents such as Social Security cards can be bought and sold on the street. There is no real basis on which my supervisory personnel can be satisfied that what appears to be a valid Social Security card indeed is valid. The Social Security Administration does maintain a telephone number which allows employers to inquire, by telephone, as to whether a Social Security card presented to the employer by an employee is valid. However, it is my understanding that such inquiry cannot be made to the Social Security Administration unless and until the prospective employee is actually hired. Only after that hiring occurs – with the result that my Company is already spending time, effort and money in training that employee – can an inquiry to the Social Security Administration be validly made.

Another example:

On Section 1 of the I-9 Form, an applicant for employment may attest that he or she is an alien authorized to work in this country until a date certain and may identify himself or herself by an Alien Number or an Admission Number. That information refers to certain documents. If that person then produces, say, a school I.D. with a photograph (a “List B” document) and a U.S. Social Security card, it is my understanding that it is unlawful for my supervisory personnel to require the employee to present the documents referred to in Section 1. That is true even if the document referred to by the applicant in Section 1 is a “List A” document which, in and of itself, would prove both identity and employment eligibility. If my supervisory personnel does make a request for the production of that document, it is a violation of Federal law.

The above examples given by me, are intended to show the difficulties imposed upon American employers in the hiring of legal immigrants. The process, however, of hiring legal immigrants has been made so complicated by the law that, in effect, it has become an impediment to hiring legal immigrants. The INS has published a “Handbook for Employers” which is instructions for the completion of Form I-9. That document is approximately 35 pages in length, and contains instructions on the employment verification process which instructions are divided into eight separate parts. The document, while intended to be simple, is not. For example:

Page 14 of that document contains, in Question Number 15, an explanation as to how my supervisory personnel are suppose to be able to tell if an INS-issued document has expired. Here is the answer:


"Some INS-issued documents, such as previous versions of the Alien Registration Receipt Card (I-151 and I-551), do not have expiration dates and are valid indefinitely. However, the 1989 revised version of the Alien Registration Receipt Card (I-551), which is rose-colored with computer readable date on the back, features a 2-year or 10-year expiration date. Other INS issued documents, such as the Temporary Resident Card (I-688) and the Employment Authorization Card (I-688A or I-688B) also have expiration dates. These dates can be found either on the face of the document or on a sticker attached to the back of the document.”


My supervisory personnel are not college-educated individuals. They are working people who have gained a skill sufficient to allow them to work as supervisors. Without intending to demean their abilities, I doubt whether they would be able to understand some of the alternative directions quoted above. Mistakes could occur, which could prevent the hiring of a legal immigrant based upon the mistake and belief by the supervisory personnel that the document submitted is insufficient.

Because of the problems that I have had with the litigation referred to in this statement, I have specifically told supervisory personnel that they are not permitted to ask an applicant for employment to produce documents other than those documents which the applicant voluntarily produces. However, quoting again from Page 14 of the Handbook, the following question and answer is given:


"Q.What should I do if persons present Social Security Cards marked “NOT VALID FOR EMPLOYMENT,” but state they are now authorized to work?


A.You should ask them to provide another document to establish their employment eligibility, since such Social Security Cards do not establish this.”


It is quite understandable that, based upon the directions that I had given to my supervisory personnel, an otherwise legal immigrant who presents a Social Security card marked “not valid for employment” would not be hired; even though, perhaps, that applicant would have another “List C” document available for presentation.

As a final example of how the procedures and guidelines of the INS and the Justice Department may hinder the hiring of legal immigrants, I offer the following:

At the time my Companies settled their lawsuit with the Justice Department, one of the terms of the settlement was that I had to require my hiring personnel to view an educational videotape prepared by the Office of Special Counsel. I was told that the purpose of the educational videotape was to assist my hiring personnel in understanding their obligations with respect to hiring legal immigrants. When the educational videotape arrived, I personally viewed it. I will confess that after viewing the videotape (which lasts about 20 minutes) I was more thoroughly confused than ever before as to what my hiring personnel have to do. The tape itself is the best evidence of the difficulties with which employers are met when they attempt to meet the rigid legal requirements for legally hiring immigrant workers. I heartily recommend that this Committee obtain copies of this videotape, to get a first-hand understanding of the complexities involved.

It is my fervent hope that this statement will assist the Committee in reviewing the practice and procedure of the Justice Department and the INS with respect to the hiring of legal immigrants. It is also my fervent hope that any abuses on the part of either the INS or the Justice Department in this statement will be the subject of scrutiny by this Committee in an effort to enact legislation to prevent such abuse.

I appreciate the opportunity to have appeared before this Committee and to have presented this statement.

                                                                        Respectfully submitted,

                                                                        Otto Kuczynski

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