By: Bruce Buchanan, Sebelist Buchanan Law

The Department of Justice, through the Civil Rights Division’s Immigrant and Employee Rights Section (IER), has reached a settlement with National Systems America LP (National Systems), a Dallas, Texas-based staffing agency. The settlement resolves the claim that National Systems violated the Immigration and Nationality Act (INA) when it imposed unlawful citizenship restrictions on applicants for certain positions and required lawful permanent resident applicants, but not U.S. citizens, to provide a specific work authorization document to receive further consideration for a job.

The investigation concluded National Systems implemented U.S. citizens-only hiring restrictions based on assumptions about its clients’ preferences, and regardless of whether there was any legal justification for doing so. The department also concluded that even when National Systems was willing to consider non-U.S. citizen applicants, such as lawful permanent residents, the company nevertheless discriminated against them by requiring them to show specific documentation to confirm their work authorization before it would advance them to the next stage of the selection process.

In general, the INA allows employers to limit consideration for a job to U.S. citizens only when required by a law, regulation, government contract, or an Executive Order; not based on a client’s discriminatory preferences or assumptions about a client’s preferences. The INA also prohibits employers from requesting more or different documents than necessary to prove work authorization based on employees’ citizenship, immigration status or national origin. Instead, in the INA, Congress determined that all work-authorized individuals, regardless of citizenship status, may choose which valid, legally acceptable documents to present to demonstrate their ability to work in the United States. Finally, the INA does not permit an employer to verify an individual’s authorization to work before a job offer is accepted.

Under the terms of the settlement agreement, National Systems will pay to the United States a civil penalty of $34,200; shall not ask any individual about their citizenship or immigration status, including work visa or work authorization, in the recruitment or screening process, except to determine if the applicant is currently authorized to work or would require sponsorship to work; revise and/or create employment policies that prohibit discrimination on the basis of citizenship, immigration status, and national origin in the hiring, recruiting, referring, or firing process and employment verification process; train its relevant employees about the requirements of the INA’s anti-discrimination provision, including reading the M-274 Handbook for Employers and attending a webinar provided by the IER; post IER’s poster, “If You Have The Right to Work”, in English and Spanish; and be subject to departmental monitoring for two years.

If you want to know more information on issues related to OCAHO and employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.