The Department of Justice (DOJ) has recently reached settlements in several immigration cases. A settlement was reached in ten cases in the latter half of 2021. The settlements that have taken place in these cases have offered some clues as to how companies might avoid compliance issues.

The DOJ seems to be prioritizing the enforcement of the Immigration And Nationality Act (INA). This act banned several types of employment-based discrimination, such as national origin discrimination by employers who have more than three employees but less than 15 employees, retaliation and intimidation, immigration or citizenship status discrimination by employers who have four or more employees, or unfair documentary practices.

The Immigration and Employee Rights (IER) division of the Department of Justice is in charge of enforcing the provisions of the Immigration and Employees Rights Act that involve discrimination. The Immigrant and Employee Rights division settled 19 cases in 2021 in industries such as retail, private security, staffing, manufacturing, tech, and others.

During the previous administration, the IER focused primarily on enforcing the INA’s anti-discrimination provisions that involved protecting workers who were United States citizens. The current administration has broadened its focus, but there were still a number of cases that involved discrimination against workers that were U.S. citizens. Therefore, employers should still ensure that their policies do not discriminate against these workers.

Another area the IER seems to be focusing on is document abuse. There are specific rules all companies must follow during the completion, maintenance, and re-verification process of Form I-9. All employees of U.S. companies must complete Form I-9 to verify their authorization to work. This must be done within three days of being hired.

During the completion of Form I-9, employers are not allowed to request or demand that employees or new hires provide specific documents to show that they are authorized to work in the United States. Instead, employers need to provide employees or new hires with information about which documents or a combination of documents can be used to establish authorization to work in the United States or for re-verification.

One recent case settled by the IER involved a company that was requesting specific documents for Form I-9 based on the workers’ citizenship status. The company also fired a worker for not providing the specific document the company requested even though the worker had already provided appropriate documentation.

This company had to pay more than $21,000 in back pay, revise its procedures and policies, train its workers about the INA’s anti-discrimination policies, pay a civil penalty of $13,400, and follow certain departmental reporting requirements during the two-year term of the agreement.

Employers mustn’t request certain documents of employees when completing Form I-9. Instead, employers need to provide employees, and new hires the USCIS’s list of acceptable documents and choose the documents they wish to provide to prove their work authorization or re-verification.

There is no way to know for sure what areas the IER will be focusing on. However, recent settlements have provided some idea as to what areas employers should be looking at to avoid compliance issues this year.

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