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Recently, the Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices (‘OSC’) entered into a settlement agreement with a landscaping company following allegations of immigrant discrimination.  The DOJ lawsuit against the company concerned corporate practices requiring Lawful Permanent Residents (green card holders) to produce their green cards in order to prove their work authorization– a practice in direct violation of the law [Immigration and Nationality Act (INA) Section 274B / 8 U.S.C. Section 1324b(a)(6)].

The OSC investigation concluded the landscaping company required Lawful Permanent Residents provide their green cards in order to prove work authorization in the employment verification process whereas US citizens could select whatever valid documentation they wanted to demonstrate work authorization.  The resulting settlement requires the company pay thousands of dollars in civil penalties, undertake training on the anti-discrimination provision of the INA, and undergo monitoring and reporting.

The OSC is responsible for enforcing the federal anti-discrimination provision of the INA. This includes investigating and enforcing the anti-discrimination laws which prohibit citizenship status and national origin discrimination in hiring, firing, recruitment; document abuse, such as unfair documentary practices during the employment verification process/Form I-9; retaliation or intimidation.  Specifically, the anti-discrimination provision of the INA prohibits employers from placing additional documentary burdens on employees authorized to work  because of their citizenship or immigration status.

The Form I-9 requires the employee to submit documentation verifying their identity and authorization to work in the United States.  The Form includes lists of documents the employee may use to satisfy the requirements and it is the employee’s choice alone as to which documents they elect to submit.  For example, a Lawful Permanent Resident is not required to submit their green card to satisfy the Form I-9 employment verification requirements; rather, the Lawful Permanent Resident may elect to submit any of the documents/permissible combination of documents listed on the Form I-9 to establish their employment authorization (no different from a US Citizen completing the Form I-9).  Requiring certain employees to produce unnecessary documentation based on their citizenship or immigration status is discriminatory and actionable.

It is important for employers to remember that Lawful Permanent Residents are issued green cards and have authorization to live and work in the United States permanently.  While the green card generally contains an expiration date, the expiration of the green card does not indicate the holder has lost his or her permanent resident status in the United States.  In other words, simply because the green card expires does not mean the individual has lost their right to work in the US.  However, a Lawful  Permanent Resident cannot use an expired green card for Form I-9 employment verification purposes; generally, an employer may not accept expired documents in the Form I-9 process.

The recent OSC settlements are a reminder to employers across the country of the employment verification requirements and the consequences for engaging in discriminatory practices.  The OSC is committed to protecting all individuals authorized to work in the US from discriminatory practices and this case illustrates they will vigorously investigate and enforce the anti-discrimination provision of the INA.

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Photo of Laura Foote Reiff‡ Laura Foote Reiff‡

Laura Foote Reiff Co-Chairs the Business Immigration & Compliance Practice and is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration

Laura Foote Reiff Co-Chairs the Business Immigration & Compliance Practice and is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies, as well as related employment compliance and legislative issues.

Laura advises corporations on a variety of compliance-related issues, particularly related to Form I-9 eligibility employment verification matters. Laura has been involved in audits and internal investigations and has successfully minimized monetary exposure as well as civil and criminal liabilities on behalf of her clients. She develops immigration compliance strategies and programs for both small and large companies. Laura performs I-9, H-1B and H-2B compliance inspections during routine internal reviews, while performing due diligence (in the context of a merger, acquisition or sale) or while defending a company against a government investigation.

Laura represents many businesses in creating, managing and using “Regional Centers” that can create indirect jobs toward the 10 new U.S. jobs whose creation can give rise to EB-5 permanent residence for investment. She coordinates this work with attorneys practicing in securities law compliance, with economists identifying “targeted employment areas” and projecting indirect job creation, and with licensed securities brokers coordinating offerings. She also represents individual investors in obtaining conditional permanent residence and in removing conditions from permanent residence.

Laura’s practice also consists of managing business immigration matters and providing immigration counsel to address the visa and work authorization needs of U.S. and global personnel including professionals, managers and executives, treaty investors/ traders, essential workers, persons of extraordinary ability, corporate trainees, and students. She is an immigration policy advocacy expert and works on immigration reform policies.

Admitted in the District of Columbia and Maryland. Not admitted in Virginia. Practice limited to federal immigration practice.
Photo of Rebecca B. Schechter ‡ Rebecca B. Schechter ‡

Rebecca Schechter focuses her practice on business immigration and compliance, representing multi-national corporations midsized companies, and startups, as well as individual clients. She has experience with all areas of employment-based immigration, particularly H-1B, L-1, O-1 and E-2 petitions, as well as outstanding researcher…

Rebecca Schechter focuses her practice on business immigration and compliance, representing multi-national corporations midsized companies, and startups, as well as individual clients. She has experience with all areas of employment-based immigration, particularly H-1B, L-1, O-1 and E-2 petitions, as well as outstanding researcher petitions and labor certification applications. Rebecca regularly assists GT clients with global immigration matters, including business and work visas to countries in Europe, the Middle East, Asia, and Latin America. She also works on state and federal I-9 and E-Verify audits. Rebecca has a thorough understanding of third party contractor issues and experience handling complex naturalization, deportation defense, family and employment-based adjustment applications.

Admitted in Maryland and Connecticut. Not admitted in Virginia. Practice limited to federal immigration practice.