Unlawful Discrimination and Penalties

A city must administer Form I-9, E-Verify, and all other employment-eligibility verification practices in a nondiscriminatory manner. The Immigration Reform and Control Act of 1986 added both employer-sanctions provisions and anti-discrimination protections to the Immigration and Nationality Act (INA).

The INA prohibits four principal categories of unfair immigration-related employment practices:

• Citizenship-status or immigration-status discrimination.
• National-origin discrimination.
• Unfair documentary practices in the Form I-9, E-Verify, or other employment-eligibility verification process.
• Retaliation or intimidation against an individual who asserts rights protected by the INA’s anti-discrimination provisions.

These obligations apply throughout recruitment, hiring, employment-eligibility verification, re-verification, E-Verify use, discipline, and termination processes. The city should apply the same verification procedures to all employees who are required to complete Form I-9, regardless of their actual or perceived citizenship, immigration status, national origin, accent, appearance, or language.

Unfair Documentary Practices
The current term is “unfair documentary practices.” Although the conduct was formerly called “document abuse,” the newer terminology is preferred.

Unfair documentary practices occur when an employer treats an individual differently during employment-eligibility verification because of national origin, citizenship, or immigration status. An employer may not:

• Request more documents than Form I-9 requires.
• Require a particular document from the Lists of Acceptable Documents when the employee has presented another acceptable option.
• Reject documents that reasonably appear to be genuine and to relate to the employee presenting them.
• Treat an applicant or employee differently in the Form I-9, E-Verify, or another verification process because the person appears or sounds foreign, has an accent, uses a particular language, or is perceived to be from another country.
• Require a lawful permanent resident to present a Permanent Resident Card or require a worker to present a U.S. passport, when the employee chooses other valid Form I-9 documents.

Employees—not the city—choose which acceptable documents to present from the Form I-9 Lists of Acceptable Documents. The city must accept documents that reasonably appear genuine and to relate to the person presenting them.

Citizenship and National Origin
Citizenship-status or immigration-status discrimination occurs when an employer treats an individual differently in hiring, firing, recruitment, or referral for a fee because of the person’s actual or perceived citizenship or immigration status. In most circumstances, employers with four or more employees are covered by this prohibition.

National-origin discrimination occurs when an employer treats an individual differently because of actual or perceived national origin. National origin may relate to a person’s place of birth, country of origin, ancestry, ethnicity, native language, accent, cultural characteristics, or the perception that the person looks or sounds foreign.

The city should never apply a different verification process, request additional documents, delay hiring, or impose a different standard because of these characteristics. National-origin discrimination may also violate Title VII of the Civil Rights Act of 1964. The Department of Justice’s IER and the Equal Employment Opportunity Commission share enforcement responsibility for certain national-origin discrimination claims, depending on the employer and circumstances.

Retaliation and Enforcement
The city may not intimidate, threaten, coerce, or retaliate against an applicant, employee, former employee, or other protected individual because the person:

• Filed or intends to file a charge or complaint alleging an immigration-related employment violation.
• Participated in an investigation, proceeding, or hearing.
• Opposed conduct the person reasonably believes to be discriminatory.
• Asserted rights under the INA’s anti-discrimination provisions.

IER, within the U.S. Department of Justice Civil Rights Division, investigates and enforces the INA’s anti-discrimination provisions. The EEOC enforces Title VII and other federal employment-discrimination laws. Cities should consult Human Resources and legal counsel promptly if an employee alleges discrimination, document abuse, retaliation, or an improper E-Verify practice.

Employer Sanctions
Separate from anti-discrimination liability, a city may face civil penalties for failing to comply with Form I-9 requirements, knowingly hiring or knowingly continuing to employ an unauthorized worker, participating in document fraud, or committing other employment-verification violations. DHS or an administrative law judge may order an employer to cease and desist and may assess civil money penalties for qualifying violations.

Criminal penalties are generally associated with a pattern or practice of knowingly hiring, recruiting, referring for a fee, or continuing to employ unauthorized workers. A conviction for that pattern-or-practice offense may result in fines and imprisonment of up to six months. Ordinary Form I-9 paperwork or retention errors ordinarily result in civil—not criminal—penalties, although each situation must be evaluated on its facts.

To reduce risk, the city should:

• Complete Form I-9 for every newly hired employee after a job offer and within the required federal timeframes.
• Allow each employee to choose acceptable Form I-9 documents.
• Apply the same Form I-9 and E-Verify process consistently to all similarly situated employees.
• Train staff who handle hiring, Form I-9, E-Verify, and re-verification responsibilities.
• Maintain Form I-9 records separately from general personnel files and retain them for the required period.

Seek advice from Human Resources or legal counsel before asking for additional documents, rejecting documents, conducting selective re-verification, taking adverse action based on an E-Verify result, or responding to a discrimination complaint.