The I-9 process continues to be the bane of HR existence. Recent accommodations for remote work environments, closed driver’s license agencies, and USCIS delays in printing work permits and green cards are definitely appreciated and helpful, but they also make the process more confusing. Employers are beginning to worry about how they will catch up on viewing all of the original documents they saw remotely during the pandemic, in the USCIS-designated 3-day time frame once their companies return to the office. Meanwhile, I-9 audits and worksite enforcement actions are continuing apace. While following all of the new guidance, employers must also be sure to stick to the basics.
I-9 Flexibility Extended until September 19: USCIS has announced that its COVID-19 special flexibility provisions have been extended for another 30 days, until September 19. Of course the agency did not announce this until the last possible day, leaving employers to wonder how they would comply and implement new policies if the guidance was not extended. Under this policy, the requirement to view the actual, original employee documents has been suspended. Employers who are fully remote may use any means available to view copies of the documents to complete the I-9 form. Under this guidance all I-9s completed in this way, must be updated and the original documents viewed, within 3 days of when the company returns to in-person operations.
EAD Approval Notices Now Accepted: Delays in USCIS production of work permits led to a lawsuit against the agency brought by foreign nationals who had their work permit applications approved months ago, but never receive their cards due bureaucratic issues and printing delays at the agency. The lawsuit was settled with USCIS agreeing that the approval letter from the agency, formally known as an I-797 notice can serve as proof of work authorization. USCIS said, “employees may use Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020 informing an applicant of approval of an Application for Employment Authorization (Form I-765) as a Form I-9, Employment Eligibility Verification, List C #7 document that establishes employment authorization issued by the Department of Homeland Security pursuant to 8 C.F.R. 274a.2(b)(1)(v)(C)(7), even though the Notice states it is not evidence of employment authorization. ”
Remembering the Basics: Best practices for I-9s haven’t changed even though the way we are completing them has. Employers have always had a narrow path to follow between verifying employment eligibility and avoiding immigration-related employment discrimination.
One of the easiest and best practices to avoid treating people differently during the I-9 process is to follow the same process every time, no matter who the person or what the situation. Most important is to give employees page 1 of the I-9 to complete AND to give them Page 4 of the I-9 Form to review so they can determine which of their documents to present to the employer. While it may seem easier to tell an employee which documents to bring, this practice can inadvertently lead to citizenship or national origin discrimination, and can be document abuse. That is the practice where the employer asks for more or different documents than what is minimally required for the I-9. The most prevalent form of document abuse is when employers ask new hires to present a green card or other USCIS -issued document when the employee speaks with an accent or appears to be from a different country.
Staying on the straight and narrow can be tough, especially in these unprecedented times, but setting up an easy to follow, and compliant I-9 process will go a long way in keeping employers out of trouble.
In recent years the Department of Justice Office of Special Counsel for Unfair Immigration Related Employment Practices (OSC) has stepped up enforcement against employers who commit violations during the hiring process. The primary source of information for the commencement of investigations against employers is a Department of Justice Hotline for workers who believe they have been mistreated by potential employers during the hiring process. Attorneys at the OSC follow up on every hotline call, often contacting employers directly to educate them and obtain additional information. From its experience on the hotline, the OSC has compiled a list of the most common hiring violations it encounters. While many seem obvious, they are worth reviewing with human resources staff, as they continue to reoccur and cost employers significant civil fines and pack pay awards.
Refusing to hire workers who sound or appear foreign: Employers have been fined and required to pay back wages to non-U.S. citizen workers who were rejected on the basis of employer blanket policies of rejecting applicants who sounded or appeared to be foreign. There are many non-U.S. citizen workers who are authorized to work for any employer in the United States, include Legal Permanent Residents, Asylees, and Refugees.
Preferring to hire U.S. citizens is also an unfair employment practice, unless a law, regulation, government contract, or executive order requires that the position be filled by a U.S. citizen. Employers have been prosecuted by the OSC for including “citizen only” type language in employment advertising or application materials, as well as for communicating this preference to applicants during the hiring process. Fines for this violation have ranged as high as $100,000 in prior years.
Hiring non-immigrant visas holders while rejecting qualified U.S. citizens and lawful permanent residents who apply for the same jobs. Employers have been subject to investigation and fines during the H-2B application process after they did not hire U.S. citizens and green card holders who applied for the H-2B advertised jobs. This type of investigation is even more troublesome as it arises out of an information sharing agreement between the Department of Labor and the Department of Justice. Significant back pay awards to the affected workers are common in this type of case.
Hiring undocumented workers instead of employment-authorized individuals. The OSC is vigilant about investigating this type of complaint, which is often presented when a terminated worker complains about being replaced by an undocumented worker. The typical remedy is reinstatement and back pay for the affected worker.
No Duty to Sponsor: In spite of all of these admonishments, it is important to remember that employers have no obligation to “sponsor” any worker for immigration status under any circumstances. This means that, there is no obligation to file an H-1B petition or green card application on behalf of any employee. Foreign nationals who do not have unlimited work authorization to work for any employer in the United States are not protected by anti-discrimination provisions in the Immigration and Nationality Act. However, employers should still beware of treating various classes of foreign national employees differently. Having sponsorship policies in place, which include a time frame for the decision to sponsor as well as specific criteria and manager recommendations, is a best practice that allows employers to have defined criteria and time frames to review each individual employee for sponsorship consideration.