Citizenship/Immigration Status and National Origin Discrimination in Employment

The Coronavirus pandemic has created a national unemployment crises that has seen unemployment rates skyrocket to as high as 14% in April 2020. That coupled with office closures and production delays, many authorized US workers have not received their approved work permits, social security cards, driver’s licenses, or other critical documents necessary to obtain gainful employment. Employment authorized workers, be it permanent residents, work visa holders or work permit holders, are finding it difficult to obtain or maintain their employment due to in ability to produce the required verification documents despite government announced flexibility. Many employers are in danger or running afoul of the anti-discrimination policies of the Immigration and Nationality Act (INA) and the Civil Rights Act because they fail to properly understand the current and changing document requirements.

The Immigration and Nationality Act bars employers from discriminating against employment-authorized individuals based on their citizenship or immigration status or based on their national origin. This federal law prohibits: 1) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee, 2) national origin discrimination in hiring, firing, or recruitment or referral for a fee, 3) unfair documentary practices during the employment eligibility verification, Form I-9 and E-Verify, and 4) retaliation or intimidation.

AN EMPLOYER MAY BE DISCRIMINATING IN THE HIRING AND FIRING PROCESS WHEN IT:

  • Refuses to hire workers who sound or appear foreign.
  • Prefers to hire U.S. citizens (unless a law, regulation, government contract, or executive order requires that the position be filled by a U.S. citizen).
  • Hires non-immigrant visas holders but rejects qualified U.S. citizens and lawful permanent residents who apply for the same jobs.
  • Hires undocumented workers instead of employment-authorized individuals.
  • Fires employment-authorized workers for misrepresenting their prior work status but does not

AN EMPLOYER MAY BE DISCRIMINATING IN THE FORM I-9 PROCESS WHEN IT:

  • Demands specific documents from non-U.S. citizen workers.
  • Asks non-U.S. citizens and foreign-born citizens for more documents than needed to complete the Form I-9.
  • Rejects valid employment authorization documents from non-U.S. citizens.
  • Demands that lawful permanent residents present a new “green card” when the card expires.

Employers found to be engaging in discriminatory activity may be required to pay civil penalties and back pay to injured parties.

Despite the pandemic, all US employers are still required to comply with the mandates of the I-9 verification process and require (1) all new hires complete Section 1 of the Form I-9 on or before the first date of employment for pay, (2) the employer must complete Section 2 of the Form I-9 after reviewing original documents, and (3) the employer must complete Section 3 of the Form I- 9 (or otherwise appropriately update the Form I-9) when re-verification is necessary. Failure to properly complete the I-9 verification process and keep proper employee records may result in hefty government fines against the employer.

Virtual Review of Documents

The Department of Homeland Security (DHS) has provided a temporary option allowing for virtual review of employment verification documents under certain conditions where the pandemic has resulted in stay-at-home orders or quarantining. However, employers would later (within three business days after normal operations resume) have to physically review original documents in the presence of the employee. DHS has extended the flexibility allowing for remote verification in certain situations several times—either in 30-day or 60-day time periods. The current extension expires March 31, 2021.

Acceptable Immigration Documents

US Citizenship and Immigration Services (USCIS) has continuously provided updated guidance on the validity of certain documents throughout the pandemic given the delay in production of certain verification documents. As of January 31, 2021, the following documents are acceptable for employment verification and potential employees in possession of said documents should
not be excluded from eligibility for employment:

  • Employment Authorization Documents (EAD / Work Permit) – new employees and current employees requiring reverification who are waiting for their EAD may present a Form I-797, approval notice, through Feb. 1, 2021 as an acceptable I-9 verification document issued by the DHS that establishes employment authorization, even though the notice states it is not evidence of employment authorization.  For the notice to be acceptable, it must include a Notice Date from Dec. 1, 2019, through and including Aug. 20, 2020, and indicate that USCIS has approved the employee’s Form I-765, Application for Employment Authorization. 
  • Expired Documents – USCIS has also announced a limited exception to the requirement that all documents presented for I-9 purposes must be valid at the time of completion of Form I-9. If a driver’s license has expired on March 1, 2020 or later AND the state has announced an auto extension of expiring driver’s licenses, then the expired document can be an acceptable document. On May 1, 2020, USCIS issued additional guidance related to identity documents that could not be renewed due to COVID-19 related closures of government offices. In addition to auto extension situations, USCIS has allowed for any I-9 document set to expire on or after March 1, 2020—and which had not been extended by the issuing authority—to nonetheless be an acceptable I-9 verification document. Meaning that in certain circumstances an employer could accept an expired driver’s license or state ID card and treat it similar to the receipt rule for Form I-9 purposes. In this scenario, an employer has an obligation to follow up with the employee within 90 days after termination of this policy by DHS, at which time the employee must present a valid unexpired document to replace the expired document presented when they were initially hired.

WHAT TO DO

If you or a worker you know has suffered citizenship status or national origin discrimination we encourage you to contact our office to discuss your case or call the Immigrant & Employee Rights Section of the Department of Justice Worker Hotline at 1-800-255-7688, 9am-5pm, EST (TTY for the hearing impaired is 1-800-237-2515). You may also file a complaint with the Equal Employment Opportunity Commission.

Employers can call the IER Employer Hotline at 1-800-255-8155, 9am-5pm, EST (TTY for the hearing impaired is 1-800-237-2515) for guidance on how to avoid citizenship status and national origin discrimination. For more information, visit https://www.justice.gov/crt/immigrant-and-employee-rights-section

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