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.

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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:

  • The EEOC maintains a Youth at Work website in Spanish, which makes "key information about employment rights and responsibilities more accessible to some of the most vulnerable workers — youth who speak only Spanish or have limited English proficiency," according to the agency.
  • The Justice Department has outreach materials telling workers "if you have the right to work, don't let anyone take it away."

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:

  • Marriage to or association with members of a national origin group.
  • Membership in an organization designed to protect the interests of a national origin group.
  • Attendance at schools or religious organizations normally associated with a national origin group.
  • Association of last name or spouse's last name with a national origin group.

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:

  • Treat everyone the same. This applies when posting jobs, holding interviews, taking applications, offering jobs or verifying eligibility. Give all prospective employees the same job information and use a standard form for all applicants.
  • Let employees choose. Don't ask for particular documents or more documents than required. Employees or applicants can choose the proof they want to offer. You are covered as long as the documents prove identity and work authorization and are listed on the back of the I-9 Form from the U.S. Citizen and Immigration Services (USCIS) office (see list below). You must fill out an I-9 for all hires — citizens and non-citizens. If you use companies that provide your firm with outside contractors, this responsibility can be shifted to them.
  • Accept documents that appear genuine. But you aren't responsible for confirming their authenticity. Don't inaccurately conclude that documents are false and don't routinely investigate authenticity. You aren't expected to be an immigration expert, but you should have sufficient knowledge to understand if a document is consistent with an employee's claimed status.
  • Avoid restrictive hiring practices. First, you need a policy that requires hiring qualified people with documentation, regardless whether they're citizens or permanent residents. For qualified applicants, don't consider the expiration date of work authorization or ask for an INS document to confirm the date. You can, however, require new hires or employees to periodically show proof of continuing eligibility.
  • Don't jump the gun. Don't ask for documents before you decide to offer a job. If you request documents and then don't hire the person, you may be liable for discrimination charges.

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.)

  • U.S. Passport;
  • Certificate of U.S. Citizenship;
  • Certificate of Naturalization;
  • Properly stamped, unexpired foreign passport;
  • Alien Registration Receipt card with photograph;
  • Temporary Resident card;
  • Employment Authorization card;
  • Reentry Permit; and
  • Refugee Travel Document

List B

(Establishes only identity.)

  • Driver's license or ID issued by a state or outlying possession of the U.S.;
  • ID issued by federal, state or local government agencies;
  • School ID with a photograph;
  • Voter registration card;
  • U.S. military card or draft record;
  • Military dependent's ID card;
  • U.S. Coast Guard Merchant Mariner card; and
  • Native American tribal document

List C

(Establishes work eligibility.)

  • U.S. Social Security card (other than a card stating it is not valid for employment);
  • U.S. State Department Certification of Birth Abroad;
  • Original or certified copy of a U.S. birth certificate;
  • Native American tribal document;
  • U.S. Citizen ID card; and
  • ID card for use of Resident Citizen in the United States

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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