Immigration-Related Employment Practices

AuthorSteven M. Ladik and Kristi Taylor
Pages304-335
7-304
Chapter 7
IMMIGRATION-RELATED EMPLOYMENT
PRACTICES
By Steven M. Ladik and Kristi Taylor
7:1. GOVERNING STATUTES
7:2. EMPLOYMENT ELIGIBILITY VERIFICATION PROCESS
A. Overview
B. Persons and Entities Liable for Compliance
1. Employers
2. Employers’ Agents
3. Successors-in-Interest
4. Recruiters
5. Independent Contractors
C. Form I-9 Paperwork Requirements
1. Verify Identity and Employment Eligibility
a. Documents That Establish Employment Eligibility and Identity
b. Documents That Establish Identity Only
c. Documents That Establish Employment Authorization Only
2. Proposed Regulations to Streamline Verification Process
3. Exception for Employer Associations
4. Verification Pilot Programs
D. Recordkeeping
E. Re-Verification
F. Administration and Enforcement
1. ICE Investigations
2. Contesting a Notice of Intent to Fine
3. Defenses
a. Good Faith Compliance
(1) Form I-9: Section 1
(2) Form I-9: Section 2
7-305 immigraTion-relaTeD employmenT praCTiCes
(3) Form I-9: Section 3
(4) Good Faith Exception Unavailable
(5) Error Cannot Be Corrected
b. Grandfathered Employees
c. Continuing Employment
d. Casual Employment
e. Contract Labor
f. Reliance on State Agency Documentation
4. Penalties
7:3. IMMIGRATION-RELATED EMPLOYMENT DISCRIMINATION
A. Governing Law
B. Protected Individuals
C. Prohibited Discriminatory Practices
1. Hiring, Firing, Recruiting, Referring for a Fee
2. National Origin Discrimination
3. Citizenship Discrimination
4. Retaliation/Intimidation
5. Excessive Documentation
D. Proving Discrimination
E. Defenses
1. Title VII Preemption
2. Discrimination Required by Law
3. Right to Prefer Equally Qualified Citizens
4. Contract Workers
5. Failure to File a Timely Claim
APPENDICES
Appendix 7-1 Tips for Employers: Balancing the Act’s Verification and Anti-Discrimination
Provisions in the Hiring Process
Appendix 7-2 Summary of E-Verify State Legislation
Appendix 7-3 Summary of ICE Worksite Enforcement Actions
§7:1 Texas employmenT law 7-306
7:1. GOVERNING STATUTES
With the passage of the Immigration Reform and
Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100
Stat. 3359, Congress, for the first time, levied civil and
criminal penalties on employers who failed to verify a
new hire’s employment eligibility. With the Immigration
and Nationality Act (the Act), as amended by IRCA, and
its implementing regulations, Congress imposed detailed
procedural requirements that employers must follow after
hiring a new employee. See 8 U.S.C. §§1101, 1324a; 8
C.F.R. §274a. These rigid requirements are designed to
ensure every individual working in the United States,
regardless of nationality, is authorized for employment.
The Act’s procedural requirements must be balanced with
the IRCA’s strict anti-discrimination provisions (8 U.S.C.
§1324b) to protect against an employer becoming so zeal-
ous in its desire to verify each new hire’s employment
authorization that it discriminates against job applicants on
the basis of national origin or citizenship status. The Illegal
Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA), Div. C of Departments of Commerce,
Justice, and State, and the Judiciary Appropriations Act
of 1997, Pub. L. No. 104-208, 110 Stat. 3009, made a
number of significant amendments to IRCA’s employ-
ment verification and immigration-related discrimination
provisions, which included the authorization for the
Basic Pilot Program, an electronic employment verifica-
tion system, that is now known as the E-Verify program.
The E-Verify program is a web-based program in which
employers can enter data from the completed I-9 form
for newly hired employees that is then compared to the
information in databases maintained by the Social Security
Administration and the Department of Homeland Security
to determine whether or not the employee is authorized
to work in the U.S.
In 2003, Congress passed the Basic Program Extension
and Expansion Act of 2003, Pub. L. No. 108-156, 117
Stat. 1943, to expand the availability of the voluntary
program to employers in all 50 states. While by federal
statute E-Verify is a voluntary program, it has become
mandatory in some states for certain employers such as
companies contracting with state government agencies,
and a few states have even made the program manda-
tory for all employers within the state. Please refer to
Appendix 7-2, “Summary of E-Verify State Legislation.”
The federal government has also promulgated regulations
that now require most federal contractors and subcontrac-
tors to utilize the E-Verify system. 73 Fed. Reg. 67651
(Nov. 14, 2008). Under this regulatory amendment to
the Federal Acquisition Regulation, federal contractors
that are awarded new (or renewed) contracts on or after
September 8, 2009 that contain the E-Verify requirements
clause within the contract’s terms will be required to enroll
in the program and utilize it to verify the employment
eligibility of all new hires and all current employees
who are assigned to that particular contract. A contrac-
tor may choose to verify only new hires assigned to the
contract if the contractor is an institution of higher educa-
tion, a state or local government or the government of a
Federally recognized Indian tribe, or a surety performing
under a takeover agreement entered into with a Federal
agency pursuant to a performance bond. Subpart 22.18,
“Employment Eligibility Verification” of the Federal
Acquisition Regulation. The rule also provides employers
with the option of verifying all of its workforce through
E-Verify. Employers making this choice must initiate an
E-Verify query for all of its employees within 180 days of
making the election. Exceptions to the E-Verify require-
ments apply to contracts for work that will be performed
outside the United States; are for a period of performance
of fewer than 120 days; or are only for (1) commercially
available off-the-shelf items (COTS), (2) items that would
be COTS items but for minor modifications, (3) items that
would be COTS items if they were not bulk cargo, or (4)
commercial services that are part of the purchase of a
COTS item (or an item that would be a COTS item, but for
minor modifications), performed by the COTS provider,
and are normally provided for that COTS item. Id. Little
guidance was provided in the regulation regarding how
to determine whether particular employers are assigned
to the contract and thus subject to the E-Verify require-
ment. Contractors should involve their legal counsel in
determining the scope of the workforce that is subject
to verification through the program. Regardless of the
decision, the company should develop a policy prior to
implementation, provide training, and ensure that it is
applied consistently within the organization. The E-Verify
Federal Contractor user Manual and Supplemental Guide
for Federal Contractors contain detailed information about
the regulations and can be found at www.uscis.gov/everify.
It is important that employers do not commit discrimi-
nation. Examples of the discriminatory use of E-verify
could include:
prescreening job applicants by using the system to
determine work eligibility before a job is offered;
giving preferential hiring or start dates to new hires
based on how quickly the system returns favorable
results;
using E-verify selectively instead of applying it uni-
formly to all new hires;
using E-verify to recheck current workers eligibility
retroactively; or
using the systems DHS photo-verication phase
even if the SSA check shows eligibility.
The U.S. Immigration and Customs Enforcement
(“ICE”) is charged with enforcing the Act’s employment

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