Written by attorney JoAnn Lois Barten

Employer Compliance to Avoid I-9 Penalties: E-verification Abuse and Preventing It, Part 1 of 12

Form I-9 was revised February 2, 2009, which changes the types of immigration status which much be checked by the employee so that it is more specific. As of April 3, 2009, a new Handbook for Employers with Instructions for Completing I-9s became available (56 Pages). EMPLOYER OBLIGATIONS AND POTENTIAL LIABILITY: E-VERIFICATION - ABUSE AND PREVENTING IT Document Abuse The Office of Special Counsel for Immigrated Related Unfair Labor Practices enforces the Immigration Reform and Control Act of 1986 (IRCA). The IRCA protects against national origin and citizenship discrimination. National origin discrimination - employers with 4 to 14 employees. Persons protected - ALL individuals authorized to work. Citizenship discrimination - employers with 4 or more employees. Persons protected - US citizens and nationals, and intending immigrants. Intending immigrants are aliens who are permanent residents, temporary residents, admitted as refugees, or are granted asylum who may be intending citizens. (Note it does not protect undocumented workers). Attorney General Opinion Letters International students Employer may refuse to interview international students holding F-1, J-1, or H-1 visas, as long as the purpose is not to discrimination on national origin. However, it is recommended not to use announcements which draw distinctions on the basis of citizenship because of the possibility of national origin discrimination. OK to use. "Authorization to work in US required" "Applicant must be presently authorized to work in the US on a full-time basis." "In keeping with the immigration Reform and Control Act of 1986, we will interview students who are US citizens or nationals or aliens currently authorized to work in the US." "Applicants must be presently authorized to work in the US on a full-time basis." "All applicants must possess evidence of eligibility to work in the US." "Applicants must be presently authorized to work in the US on a full-time basis. This company does not sponsor individuals for the purpose of obtaining H-1 visas." No pre-employment I-9 processing Even if the employer intent is not to discriminate it may be relied upon by a rejected applicant to claim that the demographic information requested by the I-9 form, such as age or citizenship status was used in an adverse hiring decision. Job applications Questions related to citizenship status should be limited to whether they are "presently authorized to work in the US on a full-time basis." It is OK to ask. Are you legally authorized to work in the United States? ____ YES ____ NO Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status? ____ YES ____ NO DO NOT ASK Are you a US citizen? What is your visa status or work authorization? Or Are you a student on an F-1 visa? If so, what is your home country? Preventing Document Abuse: Initial steps. Identify the essential job functions and qualifications. Think hard about what exactly a job is supposed to accomplish, what skills are necessary to get the job done, and what schedule is necessary to do the job. Establish the Basic job requirements and work standards. Determine job qualifications that measure the person for the job and not the person in the abstract. These job requirements and work standards are related to successful performance of the essential functions of the job. Problematic neutral criteria that have been found to have an adverse impact on a protected class: height and weight standards exclude members of certain ethnic groups or fluency in the English language excludes members of certain national origin groups. Disseminate news of job openings as widely as possible. Use recruitment tools that reach the widest group. If the employer depends on employee word of mouth, members of ethnic and racial groups may never hear about the opening. Applications forms vs. resumes. Many employers use resumes instead of a standard application form. The advantage of a standard application form is that resumes often contain information that should not be obtained prior to employment. Also, resumes may fail to provide information needed to determine qualifications. Above all, avoid questions about protected class information. Acceptable Interview Questions Involving Citizenship and Immigration Status Before interviews, eliminate applications who do not meet the minimum qualifications and to select those with the strongest qualifications. It is a good idea to ask the same questions of each of the applicants to avoid the appearance of potential discrimination. Generally, any question that directly affects an applicant's ability to do the job is acceptable. Avoid any questions that pry into an applicant's personal background. If your company needs information for benefit programs or government reporting that should not be sought during the pre-employment process. After hire, if there is truly a need to have it, once obtained, keep it separate from the employee's personnel file. If specific training, education, experience, certification, or other job requirements are necessary, be sure to have evidence3 that the applicant meets the requirements rather than just accepting the applicant's word. National Origin; Appropriate Questions: NONE unless national origin is a bona fide occupation qualification (BFOQ). (THIS IS RARLY ALLOWED) Inappropriate Questions: What is your nationality? Where you born in the United States? What country are your parents from? Where were you born? Languages; Appropriate: Do you speak Spanish (or other language) if it is required for the job? What is your level of fluency? Inappropriate: What foreign languages do you speak or write? How did you learn those languages? What is your native tongue? Citizenship; Appropriate: Are you legally authorized to work in the United States? Inappropriate questions: Of what country are you a citizen? Are you a native born or naturalized US citizen? Are your parents citizens?

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