The OSC investigates the following types of discriminatory behavior under the antidiscrimination provision of the Immigration and Nationality Act (INA), 8 USC § 1324b:
· Discrimination based on citizenship or immigration status
With respect to hiring, firing, hiring, or transferring employers with four or more employees for a fee, employers may not treat individuals differently because they are or are not U.S. citizens or eligible persons. US citizens, recent permanent residents, temporary residents, asylum seekers and refugees are protected from discrimination based on citizenship status. However, permanent residents who do not apply for naturalization within six months of their eligibility are not protected from discrimination based on citizenship status. Discrimination based on citizenship status that is otherwise required to comply with any law, regulation, executive order or governmental treaty is permitted by law.
· Discrimination based on national origin
With respect to the hiring, firing, hiring, or transfer of employers with more than three and fewer than fifteen employees for a fee, employers may discard individuals because of their place of birth, country of origin, ethnic origin, native language, accent, or because they do not treat you differently are felt or sound strange. All US citizens, lawful permanent residents and those eligible to work are protected from discrimination based on national origin. The Equal Opportunities Commission is responsible for employers with fifteen or more employees.
· Unfair Documentation Practices
With respect to employee employability verification, employers may not request more or different documents than are required for employability verification, refuse reasonably genuine looking documents, or disclose certain documents to others in order to be discriminated against on the basis of citizenship status or national origin. US citizens and all persons entitled to work are protected against misuse of documents.
Persons filing charges with OSC; collaborating with an OSC investigation; challenge actions that may constitute unfair documentation practices or discrimination based on citizenship, immigration status, or national origin; or who exercise their rights under the INA Anti-Discrimination Policy are protected from retaliation.
The IRCA contains penalties for non-compliance with I-9. Federal law provides for prison terms or fines for providing false information or using false documents in connection with the completion of I-9. An employer who hires an unauthorized worker can be fined anywhere from $250 to $5,500 per worker. In addition, such an employer can be barred from federal government contracts for one year. An employee who knowingly accepts fraudulent documentation may also be prosecuted under other immigration laws.
An employer who fails to maintain proper records that I-9 verification services have been properly filed can be fined $110 per missing item for each form, up to $1100 per form, even if the employee is legally entitled to in to work in the US. Since 2009, Immigration & Customs Enforcement (ICE) conducted over 7,500 audits and issued over $80 million in fines. In 2011 alone, ICE conducted 2,740 audits and fined over $7 million.