On Sep 15 2021 by Allie K. Dempsey

Immigrant Workforce Management: A Cautionary Tale in I-9 Compliance

A recent settlement resulting from an investigation by the Department of Justice (DOJ), Civil Rights Division, Immigrant and Employee Rights Section (IER) against Ascension Health Alliance (Ascension), a Missouri-based health care system, highlights discrimination claims against work-authorized non-United States citizens. Specifically, the settlement resolves allegations that Ascension discriminated against these foreign national employees by implementing in-house software that caused them to request more or different documents than are required to verify employment authorization and complete Form I-9, Employment Eligibility Verification. The faulty software design caused them to violate section 247A of the Immigration and Nationality Act (INA).

Under the INA, an employer must attest under penalty of perjury that it has verified that each employee is authorized to work in the United States by collecting certain listed documents. Generally, all new employees hired after November 6, 1986, are subject to verification, including U.S. citizens and foreign nationals who are automatically eligible for employment in the U.S. Critical to the Ascension settlement, the INA also requires re-verification of employment authorization for certain employees before the expiration of the work authorization.

The INA lists specific documents that an employee can provide to verify identity and employment authorization (known as List A documents) or documents that may be presented by an employee together to separately verify identity (List B documents) and employment authorization (List C documents). The INA specifically prohibits employers from requiring the presentation of any specific document(s) during this process. This allows employees the choice of which documents to present. The INA also imposes penalties, including fines, on employers that violate the I-9 process.

In the Ascension settlement, IER alleges that the company violated the INA from at least January 1, 2018, to April 30, 2020. Specifically, the IER alleges that Ascension used a software program it developed in-house to send automated emails unnecessarily requesting documentation to reverify the employment authorization of certain employees based on immigration status or prior immigration status. The investigation found that emails were only sent to all non-U.S. citizen employees, including U.S. nationals, lawful permanent residents, asylees, and refugees whose employment authorization does not expire, but not to U.S. citizen employees. The settlement highlights violations in Michigan, where such emails were sent to 44 employees who self-identified as non-U.S. citizens at the time of hire. These employees were asked to provide documentation to reverify their employment authorization, including instances where Ascension required employees to present new documents as a condition of ongoing employment.

In a press release announcing the settlement, the DOJ emphasized that many non-U.S. citizen workers have employment authorization that does not expire and are therefore eligible for the same types of documents that U.S. citizens often present during the I-9 employment verification process, including unrestricted Social Security cards and driver’s licenses. Indeed, guidance provided to employers in the Department of Homeland Security’s (DHS) M-274 Handbook for Employers, Guidance for Completing Form I-9, specifically provides that re-verification is never required for U.S. citizens or noncitizen nationals and that re-verification is never required when certain documents, including a permanent resident card, expire. The Handbook also clearly articulates that asylees and refugees are work authorized incident to status and indefinitely. As a result of these and other nuances, the anti-discrimination provisions of the INA prohibit employers from requesting more or different documents than necessary to prove employment authorization based on citizenship, immigration status, or national origin.

Under the terms of the Ascension settlement, the company is required to pay a civil penalty of $84,832 to the United States Treasury. Ascension is further required to train its employees on the anti-discrimination provisions of the INA, is subject to monitoring for three years to ensure compliance, and agrees to stop requesting or requiring documentation from employees who do not require re-verification. Ascension is prohibited from sending automated emails to employees regarding employment eligibility re-verification as well as from tracking the expiration date of documents that do not require re-verification under the INA and implementing regulations.

Ascension is a sophisticated employer with operations in 19 states and the District of Columbia and reports having provided $2.4 billion in medical care during its 2020 fiscal year. This settlement, therefore, serves as a cautionary tale for all employers, including large employers using software programs to aid in I-9 verifications, to ensure careful compliance with the anti-discrimination provisions of the INA. Software programs intended to make the I-9 and onboarding of new employees more efficient must be programmed and used carefully to avoid discrimination.

Employers should in particular continue to be vigilant in their compliance during the ongoing COVID-19 pandemic, during which DHS and U.S. Immigration and Customs Enforcement (ICE) have announced flexibility in complying with certain requirements related to employment eligibility verification. These pandemic flexibilities recognize precautions taken by employers to facilitate social distancing and waive requirements for the physical inspection of documents during employment eligibility verification and have most recently been extended through December 31, 2021. The flexibility does not, however, extend to discriminatory practices that violate the INA, so ongoing awareness and training are key for employers to remain compliant.

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the September 15, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.