Immigration Compliance: Beware of Being TOO Diligent

Sep 13, 2021 | Human Resources Services

In a new settlement, the Department of Justice (DOJ) imposed a civil penalty of $84,832, along with training and monitoring requirements, on Ascension Health Alliance, a Missouri-based health care organization with more than 2,600 sites, including 146 hospitals and more than 40 senior living facilities in 19 states and the District of Columbia.

Ascension was found to have violated the law by discriminating against work-authorized non-U.S. citizens because of their citizenship status. Ascension told its noncitizen employees to prove their continued authorization with new documentation even when not required. Close to the expiration date of non-U.S. citizen employees’ documents, the company sent the workers automated emails and further required non-U.S. citizen employees to present new documents to continue working for the company. Ascension did not send such emails to U.S. citizens and did not similarly notify them near the expiration of their documents.

This is a good example and warning to employers not to treat their noncitizen employees differently from their U.S. citizen employees, and not to ask for additional documentation beyond the minimum required by law. “This is a good example and warning to employers not to treat their noncitizen employees differently from their U.S. citizen employees, and not to ask for additional documentation beyond the minimum required by law. “Every time I conduct an internal audit [for a company], the one thing I see in almost every case is over-documentation from people seeking to be too diligent and inadvertently triggering the anti-discrimination provisions” of the Immigration and Nationality Act, said Bernie Wolfsdorf, managing partner at WR Immigration.

Employers should heed the following tips:

  • Don’t request more or different documents than necessary under the law. The I-9 form’s instructions clearly state which documents an employee can choose to present. Employers cannot reject reasonably genuine-looking documents or specify certain documents over others based on citizenship status or national origin. This type of discrimination typically occurs in the Form I-9 and E-Verify processes, according to DOJ.
  • Don’t treat U.S. citizen employees differently from noncitizens. DOJ notes that using criteria for different treatment like place of birth, native language, accent, appearance, or other national origin indicators is unlawful. In general, employers are not allowed to treat individuals differently in hiring, firing, recruitment, or referral for a fee because of their citizenship status. Authorized workers are protected from citizenship status discrimination.
  • An employer cannot have a policy of hiring only U.S. citizens unless a law, regulation, government contract, or executive order requires the employer to limit the specific position to U.S. citizens, which is rare.
  • Don’t retaliate or intimidate employees who file charges with DOJ’s Immigrant and Employee Rights Section (IER), oppose what they reasonably believe are violations of the law that IER enforces, or otherwise assert their own or others’ rights under the anti-discrimination provisions.
  • If a worker takes action in response to a tentative nonconfirmation (TNC) from E-Verify, don’t fire, delay the employment of, or take any adverse action against the worker because he or she is contesting the TNC. Similarly, don’t take any adverse employment action against a worker solely due to a Social Security number no-match notice, since that can happen for a variety of reasons.
  • Make sure software and automated programs do not inadvertently discriminate against or harass employees unlawfully. Even if unintentional, such treatment can result in penalties for your company. Employers should periodically review their systems with IT to ensure continued compliance with the law.

Contact your WR Immigration attorney for advice and help in specific situations.

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