Intra-agency referrals are exposing employers to increased risk of immigration compliance and enforcement actions. The U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has Memorandums of Understanding in place U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration Customs and Enforcement, among others. As reported previously, OSC has launched several investigations against employers over the last 18-20 months after receiving information from USCIS on the misuse of the E-Verify program by employers, often in the form of employer data exception reports. These reports track an employer’s E-Verify usage and compare key data point to national averages, and, if an employer’s usage is in some way inconsistent with the national average, USCIS will send the report to OSC for review and possible investigation. A recent case is another example of this trend and reminds employers to make sure all company representatives who are using E-Verify are doing so compliantly.
In its most recent agreement, involving a California-based staffing company, OSC received a referral from USCIS about possible immigration discrimination during the hiring process. OSC concluded that members of the company’s staff required non-U.S. citizens to present specific documents during the employment eligibility verification process to establish their US work eligibility, but did not have the same requirements of similarly-situated U.S. citizens. Under the settlement agreement, the staffing company will pay $230,000 in civil penalties to the United States, create a $35,000 back pay fund to compensate individuals who may have lost wages due to the company’s practices and undergo training on the anti-discrimination provision of the INA. Certain branches of the staffing company will also be subject to departmental monitoring and reporting requirements for a period of three years.
This settlement serves as a reminder to employers of the need to ensure compliance with the anti-discrimination provisions of the INA when completing form I-9 and E-Verify for new employees. Running afoul of these requirements can subject employers not only to monetary damages running into six figures, but also the reputational damages associated with agreeing to a settlement with OSC.