Avoiding Immigration-Related Employment Discrimination: Best Practices from the DOJ

The Department of Justice Office of Special Counsel for Unfair Immigration Related Employment Practices has been actively investigating and prosecuting employers for large and small violations. While fines can be minimal, the intrusion into a company’s day-to-day operations as well as the strong likelihood of a follow-on I-9 Audit and multiple years of re-auditing by both the DOJ and the USCIS should be deterrent enough to encourage employers to get their policies and practices in order.

The Office of Special Counsel recommends the following best practices  during the hiring and I-9 verification process :

  1. Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing.
  2. Examine and accept original documents that reasonably appear genuine and relate to the employee.
  3. Do not demand different or additional documents as long as the documents presented prove identity and work authorization are listed on the back of Form I-9, and appear genuine.
  4. As long as the job applicants are authorized to work in the United States, avoid requiring job applicants to have a particular citizenship status, such as U.S. citizenship or permanent residence, unless mandated by law or federal contract.
  5. Give out the same job information over the telephone to all callers, and use the same application form for all applicants.
  6. Base all decisions about firing on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of your employees.
  7. Complete the I-9 form and keep it on file for at least three (3) years from the date of employment or for one year after the employee leaves the job, whichever is later.
  8. 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 non-citizens alike – hired after November 6, 1986.
  9. If re-verification of employment eligibility becomes necessary, accept any valid documents your employee chooses to present – whether or not they are the same documents the employee provided initially.
  10. Be aware that U.S. citizenship, or nationality, belongs not only to persons born within the 50 states, but may belong to persons born to a U.S. citizen outside the United States. Persons born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, American Samoa, or Swains Island also are U.S. citizens or nationals. Finally, an immigrant may become a U.S. citizen by completing the naturalization process.


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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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