Written by: Robert S. Groban Jr.

The U.S. Department of Justice’s Office of Special Counsel (“OSC”) was established by Immigration Reform and Control Act of 1986 (“IRCA”). The OSC investigates and prosecutes employers for discriminating against workers based on national origin, citizenship status, and document abuse. Liability can attach when an employer acts too zealously in satisfying its Form I-9 obligations, such as asking foreign-looking applicants for more or different documents than it seeks from “American” workers or instructing employment applicants on which documents to provide for Form I-9 verification. Given the recent increase in Form I-9 audits by U.S. Immigration and Customs Enforcement (“ICE”), employers understandably have been too eager to satisfy their legal obligations and inadvertently crossed the line into prohibited discrimination under the IRCA. Proper training of all involved in the Form I-9 process can help organizations navigate the treacherous waters that IRCA established between the Scylla of its worksite enforcement requirements and the Charybdis of its anti-discrimination provisions.

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