PROHIBITED DISCRIMINATORY PRACTICES
QUESTIONS & ANSWERS
1. Which employment related practices are prohibited by the Immigration and Nationality Act?
a. Unfair documentary practices during the Form I-9 and E-Verify process
b. Citizenship or immigration status discrimination
c. National origin discrimination
d. Retaliation or intimidation
2. What is considered unfair documentary practices?
Unfair documentary practices generally occur when employers treat individuals differently on the basis of national origin or citizenship or immigration status in the Form I-9 or E-Verify processes, or any other process an employer may use that verifies employment eligibility.
Unfair documentary practices can be broadly categorized into four types of conduct:
a. Requesting that an individual produce more or different documents than are required by Form I-9 to establish the individual’s identity and employment authorization
b. Requesting that individuals present a particular document, such as a “Green Card,” to establish identity and/or employment authorization
c. Rejecting documents that reasonably appear to be genuine and to relate to the individual presenting them
d. Treating groups of individuals differently when verifying employment eligibility, such as requiring certain groups of individuals who look or sound “foreign” to present particular documents the employer does not require other individuals to present
3. What is considered citizenship or immigration status discrimination?
Citizenship or immigration status discrimination occurs when an employer treats individuals differently based on their real or perceived citizenship or immigration status with respect to hiring, firing, recruitment, or referral for a fee. U.S. citizens, U.S. nationals, recent permanent residents, asylees, and refugees are protected from this type of discrimination
4. What is considered national origin discrimination?
National origin discrimination under the INA occurs when an employer treats individuals differently based on their national origin with respect to hiring, firing, recruitment, or referral for a fee. An individual’s national origin relates to the individual’s place of birth, country of origin, ethnicity, ancestry, native language, accent, or the perception that they look or sound “foreign”
5. What is considered retaliation or intimidation?
An employer or other covered entity cannot intimidate, threaten, coerce, or otherwise retaliate against an individual because the individual has filed an immigration-related employment discrimination charge or complaint; has testified or participated in any IER investigation, proceeding, or hearing; or otherwise asserts his, her, or other’s rights under the INA’s anti-discrimination provision.
6. What penalties may an employer face if it engages in prohibited practices?
If an investigation reveals that an employer engaged in unfair immigration-related employment practices under the INA, IER may file a lawsuit.
Settlements or lawsuits may result in one or more corrective steps, including:
a. Hiring or reinstating, with or without back pay, individuals directly injured by the discrimination
b. Posting notices to employees about their rights and about employers’ obligations
c. Educating all personnel involved in the hiring process, about the proper procedures for verifying an individual’s employment eligibility, and complying with anti-discrimination laws
Employers that violate the anti-discrimination provision of the INA may also be ordered to pay a civil money penalty
7. What steps can an employer take to avoid discrimination during recruiting, hiring, and the Form I-9 process?
a. The employer should not:
1. Have different rules or requirements for individuals because of their national origin, citizenship, or immigration status.
2. Request to see employment eligibility verification documents before hire and completion of Form I-9 because an individual looks or sounds “foreign,” or because the individual states that they are not a U.S. citizen
3. Refuse to accept a document, or refuse to hire an individual, because a document has a future expiration date
4. Request specific documents from individuals to run an E-Verify case or based on an E-Verify tentative non-confirmation
5. Request that an individual run a Self Check case or present documents showing the individual cleared Self Check
6. Request that an employee who presented an unexpired Permanent Resident Card present a new document when the Permanent Resident Card expires
7. Request specific documents for re-verification
8. Limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law; regulation; executive order; or federal, state, or local government contract
If you have questions about your immigration case here in Florida, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Groups. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any family or marital legal issues you may be experiencing.
