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DOJ'S Enforcement of IRCA Non-Discrimination Provisions a New Trend

A New Facet of Government’s Corporate Immigration Enforcement: DOJ Pursues Employers for Discrimination Under Immigration Reform and Control Act for Going Too Far With Form I-9 Verification

A lot has been written recently on the government’s going after employers for insufficient immigration compliance, i.e. not doing enough to check identity and employment eligibility of workers. Employers had to pay large fines (Abercrombie and Fitch, $1,000,000 for imperfect I-9 Employment Eligibility Verification Forms,) and some even went to jail (27 years of jail for CEO of Agriprocessors, where the government used allegations of immigration violations as a “tip of the spear” to investigate and prosecute him on a slew of other charges). In response to this trend, employers are asking more questions when hiring. However, asking too many questions and requiring foreign nationals or naturalized citizens to present more documents than needed under the law may constitute prohibited discrimination under Immigration Reform and Control Act (IRCA). Specifically, section 274B of the Immigration and Nationality Act, 8 U.S.C. 1324b, 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. Document abuse (unfair documentary practices during the employment eligibility verification, Form I-9, process, and

4. Retaliation or intimidation.

In the past year, the DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has investigated and prosecuted several employers for IRCA-based discrimination. Three recent cases are on point:


On August 22, 2011 Farmland Foods, Inc., a subsidiary of Smithfield Foods Inc. and a major U.S. pork producer headquartered in Kansas City, MO, settled a lawsuit filed by the Department of Justice on June 27, 2011. It took approximately nine weeks for Farmland to agree to pay $290,400, and agree to revise its hiring practices while being “monitored” by the government. In June of 2011, the U.S. Department of Justice’ Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) alleged, based on its investigation, that Farmland, Inc. “engaged in a pattern or practice of discrimination by imposing unnecessary and excessive documentary requirements on non-U.S. citizens and foreign-born U.S. citizens when establishing their authority to work in the United States.” Specifically, the government alleged that:

  • “Farmland required all newly hired non-U.S. citizens and some foreign-born U.S. citizens at its Monmouth, Ill., plant to present specific and, in many cases, extra work-authorization documents beyond those required by federal law.

  • In the case of non-U.S. citizens, Farmland required the presentation of additional work authorization documents, generally by requiring social security cards, even when employees had already produced other documents establishing work authority.

  • In the case of foreign-born naturalized U.S. citizens, Farmland required evidence of citizenship, such as certificates of naturalization or U.S. passports, even when those individuals had other means of proving their work authority.”

Catholic Healthcare West

In this case, OSC alleged that Catholic Healthcare West (CHW), a hospital provider, violated anti-discrimination provisions of IRCA by “requiring non-U.S. citizen and naturalized U.S. citizen new hires to present more work authorization documents than required by federal law, but permitted native born U.S. citizens to provide documents of their own choosing.” Catholic Healthcare West entered into a settlement agreement with OSC in October 2010. Under the terms of the settlement, the company agreed to pay $257,000 in civil penalties to the Department of Justice, as well as back pay to the charging party. CHW has also agreed to review its past I-9 practices at all of its 41 facilities in order to identify and compensate any additional victims of over-documentation who have lost wages as a result, and implement policies and procedures for ensuring best practices with regard to hiring and employment eligibility verification.

Brand Energy

Brand Energy and Industrial Services and its subsidiary Industrial Services, LLC settled with OSC in July 2011 after the government alleged that Industrial Services engaged in a pattern and practice of discrimination while completing Form I-9 on its non-citizen workers. The DOJ claimed that Industrial Services required newly hired non-citizen workers to present documents issued by the Department of Homeland Security for purposes of completing Form I-9. The workers were allegedly terminated if they could not produce the required documentation. Industrial Services allegedly did not impose the same requirements on its U.S. citizen workers. Industrial Services agreed to pay a fine of $43,560 to the DOJ, in back pay, and interest to the terminated workers, train human resources personnel, and adopt monitoring provisions of its

hiring practices.

Corporate Immigration Attorney’s Take

This is a trend that employers should not ignore. Immigration compliance is a careful balance. In order to comply with the law, businesses must not only do enough in regards to verifying identity and employment eligibility, but they also cannot go too far. Bottom line, implementing well-crafted immigration compliance policies and procedures, conducting I-9 audits to uncover and correct mistakes, training I-9 administrators/hiring personnel to prevent further mistakes, not only keeps employers from violating the law, but is much less expensive compared to the staggering fines employers my face for not non-compliance.

By Mira Mdivani

President, Corporate Immigration Compliance Institute

Corporate Immigration Lawyer, THE MDIVANI LAW FIRM, LLC

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