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Employers must be very careful when completing I-9s for new employees to not discriminate. Without proper training, it is easy to violate federal anti-discrimination laws while trying to comply with Federal Form I-9’s employment eligibility and work authorization requirements.
Discrimination may happen in several ways during the hiring process.
A common example is when an employer requests that a lawful permanent resident worker present his/her green card for employment. U.S. immigration law prohibits employers from requesting specific documents or rejecting valid documents during the employment eligibility verification process. All workers must be given a choice of which documents to present, as long as they present documents that are on the Form I-9’s List of Acceptable Documents.
New Regulations Describe Discrimination Enforcement
On January 18, 2017, new Federal Regulations go into effect concerning unfair immigration-related employment practices. The new rules mostly clarify and provide additional guidance to interpreting current anti-discrimination immigration laws.
Interpretation of “discrimination”:
The new regulations clarify that discrimination means intentionally treating individuals differently from others because of a protected characteristic. The intent to discriminate must be based on national origin or citizenship status to be considered a violation.
Interpretation of “Citizenship Status":
Citizenship status is not limited to whether a worker is a US Citizen or not. Citizenship status extends to how an employer may treat different classes of non-citizens differently. For example, an employer may decide to hire someone who is a lawful permanent resident, but decide not to hire someone who is on valid refugee status. This would constitute unlawful discrimination based on the refugee’s citizenship status.
“Intentionally” does not mean the employer has to have bad intent:
The new regulations continue to reject “good faith” or lack of “ill will” on the part of the employer as a defense. So, an employer who treats a foreign born worker differently, but without malicious intent is still liable for discrimination, if the different treatment was because of that worker’s national origin or citizenship status. Innocent mistakes do not constitute a defense to a discrimination charge.
New Enforcement Office Name and Procedures Updates:
Complaints of immigration-related employment violations will no longer be handled by the “Office of Special Counsel for Immigration-Related Unfair Employment Practices,” and will now be handled by a new Federal Government office, the “Immigrant and Employee Rights Section.”
To learn more about discrimination and how to avoid discriminating against work-authorized individuals, please take our new Anti-Discrimination Training!
Leyla Galmarini McMullen, Business Immigration Attorney MDIVANI CORPORATE IMMIGRATION LAW FIRM 7007 College Blvd., # 460, Overland Park, KS 66211 USA Phone :: 913.317.6200 Email :: LMcMullen@uslegalimmigration.com