April 18, 2024

The Department of Justice (DOJ) recently announced its settlement agreement with a private security services provider. This agreement addressed allegations of the provider discriminating against non-U.S. citizens. 

According to the case, the company violated the Immigration and Nationality Act (INA) when verifying employees’ ability to work in the U.S. via the employment eligibility verification (Form I-9) process. As a result of this case, Assistant Attorney General Kristen Clarke of the DOJ’s Civil Rights Division made the following statement concerning the I-9 process:

“Employers cannot restrict the types of documents workers can use to prove their permission to work. The department continues to ensure that all workers, regardless of citizenship, immigration status or national origin, are allowed to present valid documents of their choice to prove their permission to work.”

The DOJ began its investigation in response to a complaint by a lawful permanent resident. The complaint alleged that the employer had required the worker to present a Permanent Resident Card to complete the Form I-9. Further investigation found reasonable cause to believe that one of the employer’s locations in Concord and Fremont, California, engaged in a pattern of unfair documentary practices against lawful permanent residents. This timeframe spanned from Feb. 3, 2020, to Dec. 20, 2021. The DOJ’s investigation further determined that the employer made similar demands for other noncitizens when verifying work authorization.

Under the INA, employers must permit workers to present any combination of facially valid documentation they choose to meet the I-9 identity and work authorization requirements. This practice disregards the employee’s national origin, citizenship, or immigration status. As such, employees may choose any document from List A or any combination of documents from List B or List C to prove their identity and work authorization. 

This practice also means employers must accept the submitted paperwork as long as it appears genuine. In many cases, non-U.S. citizens may possess documentation similar to U.S. citizens. This case included examples of such documents, including unrestricted Social Security Cards and state ID cards.

Under the settlement, the employer will pay $100,000 in civil penalties to the U.S. government. They must also create a back pay fund of $75,000 in compensation for those allegedly affected by the employer’s actions. Furthermore, the employer must provide its personnel with training on the requirements of the INA, review its policies to ensure compliance and accept additional monitoring by the DOJ.

Information provided here is for educational and informational purposes only and should not constitute as legal advice. We recommend you contact your own legal counsel for any questions regarding your specific practices and compliance with applicable laws.