As further evidence of increased enforcement efforts by the Department of Justice (“DOJ”), its Office of Special Counsel for Unfair Immigration-Related Employment Practices (“OSC”) has filed suit alleging that John Jay College (“John Jay”) discriminated against non-US citizens by requiring them to provide more documentation of work authorization than is required for the purposes of the Form I-9. This type of violation is often referred to as document abuse. In one example cited, an non-citizen worker presented a driver’s license and an unrestricted social security card, which are valid List B and List C documents, respectively, for the purposes of Form I-9. According to the allegations, however, these documents were not accepted, and the school demanded that a green card also be provided. The employee did not provide a green card, and she was ultimately terminated.
The lawsuit alleges that John Jay engaged in a pattern and practice of discrimination, as at least 103 other people were also required to provide documentation beyond what was required. The lawsuit seeks penalties of $1100 for each individual, in addition to compensation for each person who was impacted by the alleged discriminatory practice.
This recent development follows the recent agreement between the DOJ/OSC and United States Citizenship and Immigration Services (“USCIS”) to share E-Verify information. Specifically, under the agreement, the USCIS will share data obtained from queries run through E-Verify with OSC, which will allow OSC to identify potential violations of the anti-discrimination provisions of the Immigration and Nationality Act. USCIS will also provide employer information to OSC, as necessary, when employers have engaged in potential misuse or abuse of E-Verify.
In light of this recent lawsuit, and the recent information sharing agreement, it is clear that the issue of discrimination in employment verification is a focus of both USCIS and DOJ. Employers must take all steps to ensure that employees responsible for I-9 completion, and for E-Verify queries, are aware of the anti-discrimination provisions of the Immigration and Nationality Act. These steps include not only training employees on the “nuts and bolts” of these processes, but also training related to potential discrimination claims as well.