Whether immigration becomes more restrictive or expansive following the November general election, the next administration will most likely continue to encourage workforce investigations of Forms I-9 and employers’ enrollment in E-Verify.
Federal law requires employers to follow Form I-9 rules consistently for all employees regardless of national origin, citizenship status or immigration status.
Here are some tips to help employers answer questions that might arise during the hiring practice that could otherwise lead to discrimination.
Avoid unlawful pre-screening before an offer of employment is accepted.
Employers are prohibited from using the Form I-9, E-Verify, and/or the Social Security Number Verification Service to pre-screen employment candidates to determine whether they are authorized to work. The Form I-9 should only be completed after an offer of employment has been made and accepted. Employers also are not permitted to use E-Verify until the Form I-9 has been completed.
E-Verify was designed to help employers identify fraudulent documents and establish a lawful workforce, but E-Verify is limited and is not a safe harbor for employers. An E-Verify query against an employee can result in a tentative non-confirmation even if the employee is a U.S. citizen with the right to work in the United States. Employers should never automatically assume that someone is unauthorized solely on the basis of a tentative non-confirmation. Employers should provide an employee with a chance to attempt to correct the issue in E-Verify consistent with E-Verify rules before ever considering whether termination of employment is warranted.
If employers want to determine whether a job applicant requires sponsorship for work authorization, the Department of Justice’s Office of Special Counsel has stated that the following language is appropriate to ask prior to hire: “Are you legally authorized to work in the United States? Do you now or in the future require sponsorship for employment visa status?”
Inquiring about status to determine whether an export license is required.
U.S. citizens and nationals, refugees, asylees (a person who is seeking or has been granted political asylum) and recent lawful permanent residents are protected from citizenship status discrimination. These individuals are also considered “U.S. persons” under the Export Administration Regulations and the International Traffic in Arms Regulations, and do not require an export license.
“Non-U.S. persons” who will be exposed to sensitive information may require an export license in accordance with U.S. export controls laws. Employers who sponsor foreign nationals for a work visa must also attest as to whether an export license is required.
The Department of Justice’s Office of Special Counsel indicated that questions about citizenship and immigration status that are asked to all new hires and candidates for positions that are subject to export control laws are not likely discriminatory if the employer’s sole purpose is to determine whether an export license is required because of the position.
If employers ask these questions to influence a hiring decision or to determine whether the scope of work should be limited, they could be deemed discriminatory.
Require all personnel who complete Forms I-9 to undergo ongoing training to prevent discriminatory practices during the I-9 completion process.
The Form I-9 must be completed for every employee hired after Nov. 6, 1986. Officials announced that a new Form I-9 is being introduced this year to include “smart I-9 features,” such as help text and tools to facilitate data entry.
During the I-9 completion process, employers cannot legally request specific documents or too many documents from employees. Employers should present the list of acceptable documents to an employee so that the employee may choose whether to present a List A identity and work authorization document, or a combination of both a List B identity document and List C work authorization document.
Employees are only required to present a valid and original document. Improper rejection of valid documents could be deemed discriminatory.
Establish protocol to address fraud.
Employers should have a written policy with instructions to employers about what to do if an employee admits to previously presenting fraudulent documents to complete the Form I-9. An employer is not required to terminate employment unless it is the employer’s policy to do so where an employee admits to previously committing fraud and then presents an alternative valid document showing work authorization. The employee may continue working so long as alternative documentation is presented that appears genuine and related to the employee. On the other hand, an employer may decide that fraud will not be tolerated under any circumstance. Whatever the employer decides, the critical issue is that the policy be applied consistently.
Compliance audits should be carefully carried out to avoid the appearance of discrimination.
Employers should carefully plan the timing and scope of an audit to ensure that the audit is not perceived as unfairly targeting a specific group of employees. For example, an internal audit should not be limited to employees of one specific national origin. During a compliance audit, employers review historical Forms I-9 and, if attached, copies of documents presented during the I-9 completion process. During this process, if an employer reviews the photocopies of documents and determines that the validity of the documentation is questionable, then an employer must proceed cautiously.
In addition to complying with immigration law, employers must be careful to comply with anti-discrimination laws and export control laws. Due to the complexity of the laws, employers should obtain training and seek immigration counsel when creating their immigration policies.
Avalyn C. Langemeier is a partner with Foster LLP. Kari Blackman is a senior associate with Foster LLP. Both practice employment-based immigration law in Houston.