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DOJ Sues Employer for Requiring Document Not on Form I-9 List

by Kevin Lashus

[Editor's Note: today's blog is courtesy of Kevin Lashus of Jackson Lewis LLP]

Justice Department prosecutors, acting in conjunction with the Office of Special Counsel for Immigration-Related Unfair Employment Practices, have filed a lawsuit against a medical services provider with skilled nursing facilities throughout California. The Government alleges in the September 30, 2011, complaint that the company engaged in a pattern or practice of discrimination by imposing unnecessary documentary requirements on naturalized U.S. citizens and work-authorized foreign-born workers.

The Immigration and Nationality Act’s anti-discrimination provisions prohibit employers from exceeding the verification requirements for work-authorized employees during the process of hiring based upon an applicant’s or employee’s citizenship status or national origin.

As detailed in the pleadings of the case, sometime in February 2010, a work-authorized foreign-born applicant for employment with the company was asked for proof of permanent residence. The applicant did not have proof of permanent residence, but presented a work authorization document instead — a List A document for federal Form I-9 purposes, a card that legally documented her authority to work in the United States. The company rejected her valid documentation because it contained a future expiration date and allegedly told her it could not hire her unless she presented a “green card” (lawful permanent resident card).

Government prosecutors intend to establish that the company required all newly hired non-U.S. citizens at its facility to present specific and extra work authorization documents, beyond those required by federal verification law and regulation.

“Employers are not allowed to impose more burdensome employment eligibility verification procedures on certain workers based on their citizenship status,” said Thomas E. Perez, Assistant Attorney General in charge of the Justice’s Civil Rights Division. “The Justice Department is committed to vigorously enforcing the anti-discrimination provisions of the Immigration and Nationality Act, including those protecting employees from discriminatory documentary requirements.”

Every employer must implement a set of standard operating procedures to ensure proper execution of the federal verification requirements in compliance with the strict non-discrimination provisions of the Immigration and Nationality Act. With increased state and federal pressure to supplement the traditional Form I-9 requirements with E-Verify mandates and additional verification certifications, employers may erroneously choose to turn prospective employees away to minimize on-boarding costs. Employers should contact their legal counsel to minimize the risk of allegations of discrimination.

Originally published by LawLogix Group, Inc. Reprinted by permission.

About The Author

Kevin Lashus is Senior Attorney in the Texas office of Foster Quan, LLP. He is board certified in Immigration and Nationality Law in the Texas Board of Legal Specialization. He is an Adjunct Professor, University of Texas School of Law, currently teaching Emerging Issues in National Security Law. Mr. Lashus was Assistant Chief Counsel in DHS, Immigration and Customs Enforcement from 2003 to 2006.

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