Tread Carefully to Avoid Immigration Discrimination

It's a delicate balance, but employers must verify that prospective hires are legally able to work in the U.S. and they can't discriminate based on national origin.

Steep penalties come with failure to comply. For example, fines for recordkeeping violations run from $110 to $1,100 each. Fines for knowingly employing an unauthorized alien range from $375 to $16,000 for each violation. Criminal penalties are possible if a pattern of hiring unauthorized people is proved.

Both the Justice Department and the Equal Employment Opportunity Commission (EEOC) actively urge victims to come forward and file complaints if they experience discrimination. For example:

Confusing the issue even more, the EEOC has guidelines that give undocumented workers the same remedies against discrimination as legal workers, including back pay, reinstatement, hiring, attorney's fees and fines.

Except in very limited situations (see right-hand box), you cannot refuse to employ someone based on accent, name or appearance.

Other violations include discrimination based on:

Other evidence of discrimination include requirements that employees either not be foreign trained or only be foreign trained and requirements that employees be fluent in English. Height and weight requirements can also suggest an employer is discriminating against a specific national origin.

So how can you protect your company? Here are some tips:

The legal requirements may seem difficult, but in the long run, you save legal hassles and financial penalties by complying — and create a more harmonious workplace. Consult with your lawyer and human resources staff to ensure you're following the letter of the law.

Acceptable Documents

One document from List A or one each from Lists B and C. (Check the back of Form I-9 for a full list.)

List A

(Establishes identity and eligibility.)

List B

(Establishes only identity.)

List C

(Establishes work eligibility.)

Rare Exceptions

In a few circumstances, you are allowed to opt for one national origin over another. But this is only allowed when national origin is a necessary qualification for a job.

For example, being Chinese might be necessary for being a waiter in a Chinese restaurant, or being Hispanic might be necessary for a specific role in a movie.

These exceptions are rare and you must be able to show that the job requires qualifications that can only be fulfilled by someone with a specific background.

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