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Immigration Related Unfair Employment Practices

Employers who discriminate based on national origin are breaking the law.


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What is the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC)?

What is the Immigration and Nationality Act (INA)

What are my rights and responsibilities?

What is the I-9 list of acceptable documents to prove identity and work eligibility?

Where can employers call for more information?

What is the "Look at the Facts ... Not at the Faces" campaign?

What are the 10 steps to take to avoid immigration related employment discrimination?

Q. What is the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC)?

A. The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) in the Department's Civil Rights Division protects immigrants and other workers from employment discrimination based upon citizenship status, national origin, language, accent or similar factors.

In September 1997, John Trasviqa was nominated by President Clinton and confirmed unanimously by the U.S. Senate to be Special Counsel. He is now the highest ranking Hispanic attorney at the Department of Justice. Prior to that time, he was Deputy Assistant Attorney General for Legislative Affairs and general counsel to Senator Paul Simon on the U.S. Senate Judiciary Committee. He was MALDEF's legislative counsel in Washington, D.C. As Special Counsel, Trasviqa has made community outreach and education a priority. OSC, in partnership with the Equal Employment Opportunity Commission and Department of Labor Office of Federal Contract Compliance, Women's Bureau, and Wage & Hour Division - other agencies whose missions it is to protect the rights of workers - has conducted workshops in immigrant communities in Chicago, Los Angeles, Phoenix, Dallas, Houston, Miami and New York to hear directly form workers about possible complaints of employment discrimination. In addition, it has

conducted outreach to employers in various cities in order to increase employer understanding of employers sanctions and the protections against discrimination. In 1998 and 1999, OSC expanded its focus in order to cover new areas with increasing immigrant populations such as Nebraska, Iowa, North Carolina, and Oregon.

In an effort to increase accessibility to its services and resources, OSC has signed and/or reinvigorated 41 Memoranda of Understanding with various state and local human rights agencies, where individuals can now obtain OSC information and file charges of immigration related employment discrimination. In existence since 1987, the Office of Special Counsel has received over 6,000 charges and recovered more than $1.9 million in back pay and assessed over $1.3 million in civil penalties.

The Office of Special Counsel will continue to address immigration-related employment and other immigrant rights issues. For further information, call 800-255-7688 or write to:

Office of Special Counsel for Immigration-Related Unfair Employment Practices

U.S. Department of Justice

P.O. Box 27728

Washington, DC 20038-7728

The Office of Special Counsel has multilingual staff and attorneys ready to assist workers, employers and the public on immigrant employment discrimination matters.

Q. What is the Immigration and Nationality Act (INA)?

A. The Immigration and Nationality Act (INA) is the federal law governing almost all immigration matters. It prohibits employers from knowingly hiring undocumented workers and requires employers to verify their employees' identity and work eligibility as specified on the I-9 form. In addition, it prohibits job discrimination based on immigration status.

INA's antidiscrimination provisions intend that all employees and job applicants are treated equally, whether or not they are U.S. citizens. INA prohibits employment discrimination on the basis of a potential worker's national origin or citizenship status. Under INA, workers must prove both identity and work authorization, but there are several combinations of legally acceptable documents from which they can choose. These combinations are listed on the back of the I-9 form, which must be completed for every employee, regardless of national origin, including U.S. citizens. An employer's failure to verify identity and employment eligibility is punishable by fine.

Congress established the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC), a component of the Civil Rights Division of the Department of Justice, to enforce the antidiscrimination provisions of INA and to educate the public about immigration-related employment discrimination.

Since 1987, OSC has received more than 6,000 charges of discrimination based on national origin or citizenship status.

Since 1987, OSC has collected almost $2 million in back pay to compensate victims of employment discrimination, and has assessed more than $1.3 million in civil penalties for violations of the antidiscrimination provisions.

Most new immigrants come from Latin America and Asia. Therefore, Latinos and Asians, both native-born citizens and newcomers, are the most likely victims of job discrimination based on citizenship status or national origin.

OSC serves all U.S. citizens, legal permanent residents, refugees and asylees. Recent cases have included long-time U.S. citizens who suffered immigration job related discrimination.

Q. What are my rights and responsibilities?

A. The Immigration and Nationality Act (INA) prohibits employers with four or more employees, when hiring, discharging, or recruiting or referring for a fee, from

Discriminating because of national origin against U.S. citizens, U.S. nationals, and authorized aliens. (Employers of 15 or more employees should note that the ban on national origin discrimination against any individual under Title VII of the Civil Rights Act of 1964 continues to apply.)

Discriminating because of citizenship status against U.S. citizens, U.S. nationals, and the following classes of aliens with work authorization: permanent residents, temporary residents (that is, individuals who have gone through the legalization program), refugees, and asylees.

Employers can demonstrate compliance with the law by following the verification (I-9 Form) requirements and treating all new employees the same. This includes the following steps:

Establish a policy of hiring only individuals who are authorized to work. A "U.S. citizens only" policy in hiring is illegal. An employer may require U.S. citizenship for a particular job only if it is required by federal, state, or local law, or by government contract.

Complete the I-9 Form for all new hires. This form gives employers a way to establish that the individuals they hire are authorized to work in the United States. Permit employees to present any document or combination of documents acceptable by law. Employers cannot prefer one document over others for purposes of completing the I-9 Form. Authorized aliens do not carry the same documents. For example, not all aliens who are authorized to work are issued "green cards." As long as the documents are allowed by law and appear to be genuine on their face and to relate to the person, they should be accepted. Not to do so is illegal. For the list of documents that establish identity and work eligibility, please see the List of Acceptable Documents.

The amendment of INA to include the Immigration Reform and Control Act in 1986 established the Office of Special Counsel for Immigration-Related Unfair Employment Practices to enforce the INA antidiscrimination provisions.

Discrimination charges are filed with this Office. Charges or written inquiries should be sent to:

Office of Special Counselfor Immigration-Related Unfair Employment Practices

P.O. Box 27728

Washington, DC 20038-7728

For more information, call the OSC Employer Hotline at 800-255-8155 (toll free); TDD: 800-362-2735. For questions about Title VII, please contact the Equal Employment Opportunity Commission at 800-669-4000 (toll free) or 202-275-7518 (TDD) or visit their website.

Q. What is the I-9 list of acceptable documents to prove identity and work eligibility?

The following is the I-9 list of acceptable documents:

List A Documents that establish both identity and employment eligibility.

U.S. Passport (unexpired or expired)

Certificate of Naturalization (INS Form N-550 or N-570)

Unexpired foreign passport, with I-551 stamp or attached INS Form I-94 indicating unexpired employment authorization

Alien Registration Receipt Card with photograph (INS Form I-151 or I-551)

Unexpired Temporary Resident Card (INS Form I-688)

Unexpired Employment Authorization Card (INS Form I-688A)

Unexpired Reentry Permit (INS Form I-327)

Unexpired Refugee Travel Document (INS Form I-571)

Unexpired Employment Authorization Document issued by the INS which contains a photograph (INS Form I-688B)

OR

List B Documents that establish identity

Driver's license or ID card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address

ID card issued by federal, state or local government agencies or entities provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address

School ID card with a photograph

Voter's registration card

U.S. Military card or draft record

Military dependent's ID card

U.S. Coast Guard Merchant Mariner Card

Native American tribal document

Driver's license issued by a Canadian government authority For persons under age 18 who are unable to present a document listed above:

School record or report card

Clinic, doctor, or hospital record

Day-care or nursery school record

OR

List C Documents that establish employment eligibility

U.S. social security card issued by the Social Security Administration (other than a card stating it is not valid for employment)

Certification of Birth Abroad issued by the Department of State (Form FS-545 or Form DS-1350)

Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the United States bearing an official seal

Native American tribal document

U.S. Citizen ID Card (INS Form I-197)

ID Card for use of Resident Citizen in the United States (INS Form I-179)

Unexpired employment authorization document issued by the INS (other than those listed under List A)

Q. Where can employers call to get up-to-date, accurate information instantly?

A. OSC has a toll-free automated telephone hotline for employers. The number to call is 1-800-255-8155 (and 1-800-362-2735 for the hearing impaired). Information is available 24 hours a day and features easy-to-follow prompts to receive prerecorded answers to employers' most often-asked questions. OSC research has consistently shown that many incidents of immigration-related employment discrimination are due to employers' confusion about the documents they can accept for I-9 purposes. The new system will help to increase awareness of the Immigration and Nationality Act's (INA) antidiscrimination provisions and provide the detailed and up-to-date information that employers need when they need it.

The hotline offers callers taped information on four key subjects:

Tips on avoiding immigration-related discrimination when completing the I-9 form;

Information on how to avoid immigration-related discrimination in hiring practices;

A summary of the penalties for employment discrimination; and

The acceptable documents that establish identity and work eligibility.

Callers who need additional information will be able to speak with an OSC representative from 9 a.m. to 5 p.m., Eastern Standard Time/Eastern Daylight Time.

The hotline's Fax-Back option addresses employers' need for current information. Callers can key in their fax machine number, and within minutes they will receive by fax a copy of the list of documents acceptable for establishing identity and work eligibility. They will also receive information on INA's anti-discrimination provisions. The system offers employers immediate access to the most current information on acceptable work-authorization documents. OSC will immediately update the telephone system's recorded and Fax-Back information to reflect any changes to the list of acceptable documents.

For more information, please contact:

Office of Special Counsel for Immigration-Related Unfair Employment Practices

Civil Rights Division

U.S. Department of Justice

P.O. Box 27728

Washington, DC 20038-7728

General Information: 1-800-255-7688; TDD: 800-237-2515 )

Automated Employer Hotline: 1-800-255-8155; TDD: 800-362-2735

Q. What is the "Look at the Facts...Not at the Faces" campaign?

A. "Look at the Facts. . .Not at the Faces" is an ongoing campaign to inform the work-authorized immigrant population and their employers--mostly small business owners - about the antidiscrimination provisions of the Immigration and Nationality Act (INA) and the unfair employment practices made illegal by these provisions.

The campaign focuses on newly arrived immigrants and small business employers. Newly arrived immigrants tend to experience INA-related discrimination more than other workers. Employers of these work-authorized immigrants tend to be small business owners with 4-25 employees. Typically, these business owners have limited time to become acquainted with the complexities of government regulations.

A key element in outreach to employers is, therefore, promotion of the OSC Employer Hotline. The Hotline provides simple, straightforward answers to employers' most frequently asked questions about INA. It includes a fax back feature so callers may receive a copy of the I-9 form and a list of legally acceptable documents.

In addition to educating employers, OSC also wants workers to understand their rights under INA. Workers cannot be fired or denied employment because of their national origin or citizenship status. They also have the right to choose which legally acceptable documents to present to establish their identity and right to work in the United States.

A separate toll free number, staffed by multi-lingual operators, is maintained for workers. Callers may be directed to an OSC attorney, and, if their claims have merit, may receive back pay, benefits, and job reinstatement. OSC's campaign uses broadcast and print advertising and PSAs, and story placement to promote awareness of INA among workers and employers alike. Information kits, brochures, posters, and other print materials have also been widely distributed.

To obtain more information about INA and the role of the Office of Special Counsel, call 800-255-8155.

Q. What are the 10 steps to take to avoid immigration related employment discrimination?

Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing.

Accept the document(s) the employee presents. As long as the documents prove identity and work authorization and are included in the list on the back of the I-9 form, they are acceptable.

Accept documents that appear to be genuine. Establishing the authenticity of a document is not your responsibility.

Avoid "citizen only" or "permanent resident only" hiring policies. In most cases, it is illegal to require job applicants to have a particular immigration status.

Give out the same job information over the telephone to all callers, and use the same application form for all applicants.

Base all decisions about firing on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of your employees.

Complete the I-9 form and keep it on file for at least 3 years from the date of employment or for 1 year after the employee leaves the job, whichever is later. You must also make the forms available to government inspectors upon request.

On the I-9 form, verify that you have seen documents establishing identity and work authorization for all your new employees U.S. citizens and noncitizens alike hired after November 6, 1986.

Remember that many work authorization documents must be renewed on or before their expiration date, and the I-9 form must be updated. This process is called reverification. At this time, you must accept any valid documents your employee chooses to present, whether or not they are the same documents provided initially. (Note: You do not need to see an identity document when the I-9 form is updated.)

Be aware that U.S. citizenship, or nationality, belongs not only to persons born in the United States but also to all individuals born to a U.S. citizen, and those born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of Northern Mariana Islands, American Samoa, and Swains Island. Citizenship is granted to legal immigrants after they complete the naturalization process.

For more information, call:

OSC Employer Hotline 800-255-8155

Worker Hotline: 800-255-7688

Employer Hotline: 800-255-8155

Courtesy U.S. Department of Justice

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