OSC UPDATE
April 2007
In this issue:
Assistant Attorney General for Civil Rights
Wan J. Kim was sworn in as the Assistant Attorney General
for the Civil Rights Division of the United States Department of Justice on
November 9, 2005.
Immediately prior to his nomination, Mr. Kim served as a Deputy Assistant
Attorney General in the Civil Rights Division. He has spent most of his career
at the Department of Justice, having entered through the Attorney General's
Honors Program as a Trial Attorney in the Criminal Division, and later serving
as an Assistant United States Attorney for the District of Columbia. Mr. Kim
also has worked on the staff of the Senate Judiciary Committee for former
Chairman Orrin G. Hatch, and as a law clerk to Judge James L. Buckley of the
U.S. Court of Appeals for the District of Columbia Circuit. Mr. Kim graduated
with honors from both the Johns Hopkins University and the University of Chicago
Law School. He has served as an enlisted soldier and a rifle platoon leader
in the United States Army Reserve. Born in Seoul, South Korea, Mr. Kim is
the first immigrant to serve as Assistant Attorney General for the Civil Rights
Division, and he is the first Korean-American ever to become an Assistant
Attorney General.
OSC's Telephone Interventions
OSC's telephone intervention program is an innovative form of alternative dispute resolution. It allows a caller to OSC's worker or employer hotline to work informally with OSC's staff to resolve potential immigration-related employment disputes within hours or minutes, rather than weeks or months, without contested litigation. Employers love the program because it saves them time and money. Workers love the program because it keeps them on the job. (See page 6 for telephone intervention scenarios)
OSC's Outreach Program
OSC provides speakers to make presentations to educate workers, employers and the general public about their rights and responsibilities under the anti-discrimination provision of the Immigration and Nationality Act. Upon request, OSC also provides educational materials (printed and audiovisual) at no cost. Please contact us to learn more about these services. (See last page for OSC contact information and for the Outreach Events Calendar).
Protections for Workers Under the
Basic Pilot Program
Although the existence of the Basic Pilot Program is well known, the protections
for workers contained within the program are less well known.
Basic Pilot Background
The Basic Pilot Program is a voluntary internet-based electronic employment
eligibility verification program run by United States Citizenship and Immigration
Services (USCIS), with the assistance of the Social Security Administration
(SSA). It is available to employers throughout the United States. The system
works as follows: After hire, and after the employer and employee complete
the Form I-9, participating employers submit identifying information about
the employee via the internet for an initial inquiry. The program is designed
to have SSA check the employee's identifying information, first to determine
whether the identifying information matches SSA's records and, if so, whether
the employee is authorized to work in the United States. If SSA can confirm
a record match but not eligibility to work in the United States, the system
will automatically forward the information to USCIS in order for USCIS to
check its records and determine whether the individual is authorized to work.
The employer may receive a confirmation, which means that computerized government
records confirm the employee's eligibility to work in the United States. Alternatively,
the employer may receive a tentative nonconfirmation, which means that the
computerized government records cannot confirm that the individual is authorized
to work in the United States. Tentative nonconfirmations may be generated
by SSA or USCIS. Tentative nonconfirmations may occur for a number of reasons,
including among others, typographical mistakes, name changes due to marriage
or divorce that are not reported to the government, or because the individual
is not authorized to work in the United States. Employers that receive a tentative
nonconfirmation must first double check the information that they entered
into the system to ensure that the information was accurate. If the information
was wrongly entered, the employer must enter the correct information, and
rerun the query.
Assuming that the information originally entered into the system is accurate, employers must then ask the employee whether he or she wants to challenge the tentative nonconfirmation. If the employee chooses to contest, the employer must provide the employee with a referral notice (generated by the Basic Pilot Program) that provides specific instructions for the employee to contact SSA or USCIS (including telephone numbers and/or addresses). The employee then has eight federal government work days to contact the agency and to provide whatever information and/or documents the agency may need to clarify the individual's status. With respect to an SSA referral notice, the employee must visit an SSA office to resolve the matter. With respect to a DHS referral notice, the employee must call the telephone number provided on the notice to speak with an Immigration Status Verifier ("ISV"). Once the employee has contacted SSA, he or she should inform the employer. The employer must then resubmit the inquiry at least 24 hours after the employee has resolved the discrepancy, but no later than ten federal government work days after the date of the referral. With respect to DHS referrals, once the employee has resolved the discrepancy by calling an ISV at the telephone number provided, DHS will electronically transmit the result of the referral to the employer.
In either case, the employer should not expect the employee to return with additional written proof of employment eligibility. Furthermore, in the event that the employer is not notified by the employee that he or she has resolved the issue with SSA, the employer is nevertheless required to resubmit the inquiry on the tenth federal government work day after the referral. If an employee fails to contact DHS within eight federal government work days, DHS will automatically update the system to reflect a "DHS no show," which constitutes notice to the employer that it may terminate the employee. If, even after the employee contacts SSA or DHS, the system returns a final nonconfirmation, the employer must terminate the employee. However, in some cases, even after ten federal government work days, the system may continue to show a tentative nonconfirmation because the government has not been able to resolve the tentative nonconfirmation. For example, SSA may lack sufficient information to confirm a record match and may report a tentative nonconfirmation. Thereafter, the employee may provide sufficient information for SSA to show a match in its records, but SSA may nevertheless lack the information required to confirm work authorization in that employee's case. In this case, the system will automatically forward the inquiry to USCIS, which might then generate a tentative nonconfirmation pending more information from the employee or an updating of its own records. Such a situation would lead the employer to receive a second tentative nonconfirmation for the same employee, but this time from USCIS.
Another possibility is that either government agency needs
additional time to process the inquiry in order to make a final determination.
In certain cases, where the referral to USCIS is made automatically by the
system, Program rules permit USCIS to notify the employer that it needs more
time to make a determination. Program rules also require the employer to allow
the employee to continue to work during the verification process. In other
words, employees may not be terminated, or otherwise adversely affected in
employment, until, and unless, the system returns a final nonconfirmation.
Participating employers sign a memorandum of understanding (MOU) with USCIS
and SSA that spells out the respective duties and obligations of the employer
and government. Participating employers must also complete an online web tutorial
before accessing the program, and may consult the Basic Pilot Manual as well
as other resources made available to them online.
Important Worker Protections:
For more information about the Basic Pilot Program, contact OSC.
OSC and Equal Employment Commission (EEOC) Memorandum of Understanding (MOU)
OSC and EEOC have a long history of working together on their shared mission of combating employment discrimination. To further this goal, OSC and EEOC have a MOU that provides for joint outreach and training, cooperation and coordination on joint and related investigations, and reciprocal referral of charges that were originally filed with the wrong agency. Under the MOU, each agency acts as the agent of the other to receive charges that are erroneously filed with the other agency, in order to stop the filing deadline from running. In order to advance the objectives of the MOU, OSC continues to pursue joint outreach opportunities with the EEOC and training of EEOC investigators, intake staff and National Call Center staff. The training is intended to improve the ability of EEOC staff to recognize discrimination complaints falling within OSC's jurisdiction. For example, OSC trained new EEOC investigators during their national training program held in May 2005, so that matters will be properly referred to OSC.
A particular focus has been staff training and coordinated outreach to key regions where OSC has not previously conducted EEOC training. For example, OSC trained attorneys in EEOC's New York District Office, as well as investigators and intake personnel, and met with EEOC's New York Regional Counsel to discuss ways to facilitate additional charge referrals under the MOU. OSC also forwarded training materials for distribution to EEOC's New York District and area offices.
In addition, OSC worked with the EEOC''s National Call Center to revise its scripts on immigration-related employment discrimination. (The EEOC's National Call Center fields calls from the public on employment discrimination-related matters.)
OSC will continue its nationwide joint employer outreach with
the EEOC through the EEOC's Technical Assistance Programs. OSC has presented
or is scheduled to present at the TAPS in the following locations in 2007:
Beaver Creek, CO; Orange Beach, AL, Las Vegas, NV; Hot Springs, AR; Wisconsin
Dells, WI; Charlotte, NC; San Antonio, TX; New Orleans, LA; Jackson, MS; Phoenix,
AZ; Chapel Hill, NC; Memphis, TN, Dallas, TX and Hampton, VA.
This cooperation and coordination between OSC and EEOC under the MOU has substantially
improved the effectiveness and efficiency of OSC's enforcement and outreach
efforts.
OSC''s Role in Combating H and L Visa Fraud
Over the past year, OSC has received numerous charges and
hotline calls alleging that US citizens and other work authorized workers
were not hired or were displaced because the employer preferred to employ
H or L visa holders. This type of discrimination falls under the OSC's citizenship
status discrimination jurisdiction. During the investigation of these charges,
OSC has encountered several companies using the H and L visa process in questionable
ways. The H-1B and the L-1 visas are two of several types of temporary work
visa classifications. The H-1B visa category applies to persons temporarily
in the United States to perform services in a specialty occupation that requires
the theoretical and practical application of highly specialized knowledge
and completion of a specific course of higher education. The L-1 visa classification
is designed to facilitate a company's temporary transfer of employees with
management, executive and specialized knowledge skills to the United States,
to continue their employment with the same employer.
In January 2006, the Department of Homeland Security issued a statutorily
mandated report on L-1 visa abuses. OSC has been participating in the inter-agency
task force mandated to address these issues. Discriminatory hiring preferences
for temporary visa holders fall under OSC's jurisdiction. A report from the
task force is expected to be issued in the near future.
Temporary Protected Status Updates
Temporary Protected Status (TPS) is a temporary immigration status granted by the Secretary of Homeland Security to aliens in the United States who are nationals of countries subject to environmental disaster, armed conflict, or other extraordinary and temporary conditions. During the period for which a country has been designated for TPS, TPS beneficiaries may remain in the United States and may obtain work authorization. Information about TPS designations, extensions and automatic extensions of work authorization is published by notice in the Federal Register. Individuals or employers who have questions about TPS designations or extensions for a particular country should contact OSC or visit OSC's website for further information.
Honduras and Nicaragua
The Department of Homeland Security (DHS) announced a 12-month
extension of TPS for nationals of Honduras and Nicaragua from July 5, 2006
until July 5, 2007. Eligible TPS Honduran and Nicaraguan nationals were required
to re-register with United States Citizenship and Immigration Services (USCIS)
from April 1, 2006 through June 1, 2006. In order to prevent a gap in work
authorization while eligible Hondurans and Nicaraguans waited for their re-registration
applications to be processed, the old employment authorization documents (EADs),
or "work permits," which would have expired on July 5, 2006, were
automatically extended until January 5, 2007.
Upon processing these applications for renewed work authorization, USCIS issued
new EADs for Hondurans and Nicaraguans. Only some re-registrants received
approval or denial notices by January 5, 2007. Due to the high volume of re-registration
applications, some re-registrants may have to visit an application support
center (ASC) to obtain an extension sticker on their EADs, or wait to receive
their EADs on a later date. Extension stickers should be valid through June
2007. TPS was first granted to nationals of Honduras and Nicaragua in January
1999 because of conditions stemming from Hurricane Mitch.
El Salvador
DHS announced a 12-month extension of TPS for nationals of El Salvador from September 9, 2006, until September 9, 2007. Eligible Salvadoran nationals were required to reregister with USCIS from July 3, 2006 through September 1, 2006. Upon processing these re-registration applications, USCIS issued new EADs for some TPS Salvadorans. In order to prevent a gap in work authorization while eligible Salvadorans waited for their re-registration applications to be processed, the old EADs, which bear expiration dates of September 9, 2006, were automatically extended until March 9, 2007. For those Salvadorans who received EADs with an expiration date of July 5, 2006, during the previous re-registration period, DHS similarly automatically extended them until March 9, 2007. Only some re-registrants received approval or denial notices, by March 9, 2007. Due to the high volume of re-registration applications, some re-registrants may have to visit an application support center to obtain an extension sticker on their EADs, or wait to receive their EADs on a later date. Extension stickers should be valid through June 2007. TPS was first granted to nationals of El Salvador in 2001 because of the damage caused by devastating earthquakes.
Somalia
DHS announced an 18-month extension of TPS for nationals of Somalia from September 17, 2006 through March 17, 2008. Eligible Somalians were required to reregister with USCIS from July 27, 2006 to September 25, 2006. Upon processing these applications, USCIS issued new EADs for TPS Somalians. In order to prevent a gap in work authorization while eligible Somalians waited for their re-registration applications to be approved, the old EADs, which bear expiration dates of September 17, 2006, were automatically extended until March 17, 2007. TPS was first granted to nationals of Somalia in 1991 due to extraordinary and temporary conditions resulting from an ongoing armed conflict.
Burundi
DHS announced a 12-month extension of TPS for nationals of Burundi until November 2, 2007. Eligible Burandians were required to reregister with USCIS from September 14, 2006 through November 13, 2006. Upon processing these applications, USCIS will issue new EADs for Burandians. In order to prevent a gap in work authorization while eligible Burandians wait for their re-registration applications to be processed, the old EADs, which bear expiration dates of November 2, 2006, have been automatically extended until May 2, 2007. There are approximately 27 nationals of Burundi who were eligible for re-registration.
Liberia
DHS announced that it has terminated the TPS designation of
Liberia. The designation will end September 30, 2007. After reviewing country
conditions and consulting with the appropriate government agencies, the Secretary
of Homeland Security determined that conditions in Liberia no longer support
the TPS designation. TPS was first granted to nationals of Liberia in 1991
and that designation was terminated in 1999. Subsequently, TPS was designated
for Liberians again in 2002 due to ongoing armed conflict. Eligible Liberians
were required to reregister with DHS to maintain their TPS benefits until
expiration of the designation. The re-registration period ran from September
20, 2006 through November 20, 2006. In order to prevent a gap in work authorization
while eligible Liberians waited for their re-registration applications to
be processed, DHS granted an automatic six-month extension of EADs to April
1, 2007. Once the TPS designation is no longer in effect, former TPS beneficiaries
return to the immigration status they held before registering for TPS (unless
that status has since expired or been terminated) or to any other status they
may have acquired while registered for TPS.
Sudan
DHS announced an 18-month extension of TPS for nationals of
Sudan from May 2, 2007 through November 2, 2008. Eligible Sudanese are required
to reregister with USCIS from March 8, 2007 to May 7, 2007.
Upon processing these applications, USCIS will issue new EADs for TPS Sudanese.
In order to prevent a gap in work authorization while eligible Sudanese wait
for their re-registration applications to be approved, the old EADs, which
bear expiration dates of May 2, 2007, are automatically extended until November
2, 2007. TPS was first granted to nationals of Sudan in 1997 due to extraordinary
and temporary conditions resulting from an ongoing armed conflict.
Typical OSC Telephone Intervention Scenarios
1. The Legal Permanent Resident With A Temporary I-551
Machine Readable Immigrant Visa (MRIV)
Employee: (speaking with OSC equal opportunity specialist using a foreign
language telephone interpreter): I applied for a job and during the hiring
process the employer asked me to complete section one of the I-9 Form and
to produce proof of my eligibility to work in the United States. I showed
my valid I-551 machine readable visa (MRIV) attached to my unexpired foreign
passport, but the employer stated that he had never seen anything like it
before. He then declined to accept it and insisted that I produce a permanent
resident card instead.
OSC Equal Opportunity Specialist: The type of document you presented
to the employer is acceptable for employment eligibility verification, and
should be accepted, assuming it bears certain notations. May I contact the
employer on your behalf and explain the situation?
(Employee gives OSC permission to contact the employer.) In discussion with
the employer's counsel, or, if the employer is not represented in this matter,
directly with the employer, the OSC equal opportunity specialist explains
that the document presented by the employee satisfies the requirements of
the I-9 Form. The equal opportunity specialist further explains that since
June 28, 2004, newly issued MRIVs have been printed with the statement "upon
endorsement serves as temporary I-551 evidencing permanent residency for 1
year." When an MRIV bearing this statement is contained in an unexpired
foreign passport and is endorsed with an admission stamp, it constitutes a
temporary Form I-551 valid for one year from the date on the admission stamp
and can be used to establish employment eligibility for that period of time.
OSC Equal Opportunity Specialist: Hello. I contacted your employer
and the matter has been resolved. Human Resources will accept the document
you originally presented.
2. The Company Hiring Employees From Acquired Company
For Whom There Are No I-9 Forms
Employer: (speaking with OSC attorney): My company has just acquired
a new company and has hired its employees. In the process of merging the records
of the companies, I noticed that the newly acquired company does not have
I-9 Forms for about 20 employees. I contacted the acquired companys
former human resources manager, who informed me that I-9 Forms were not completed
for these employees because they were hired before November 6, 1986, and accordingly,
the company was not required to have those employees complete I-9 Forms. Can
you tell me whether the human resources managers interpretation of the
law is correct? If so, do we need to complete I-9 Forms for these employees?
OSC Attorney: The former human resources managers interpretation
of the law is correct. The requirement that every employer must have each
new employee complete an I-9 Form does not apply to those employees hired
before November 6, 1986. Consequently, since your company has this explanation
and presumably proof of hire dates for these 20 employees, your company need
not ask these employees to complete I-9 Forms.
Employer: Thank you for this very helpful information.
OSC Case Updates
During fiscal year 2006, OSC received 346 charges of alleged discrimination and directly handled more than 7,567 calls on its worker and employer hotlines. In the same period, OSC successfully resolved 85 investigations. This includes letters of resolution issued to employers who voluntarily entered into bi-lateral settlement agreements with the charging parties resolving discrimination charges. Letters of resolution are also issued to conclude independent investigations where the employer has voluntarily corrected its practices and no victims can be identified. In addition, OSC, through its hotlines, was able to intervene on 189 occasions in order to educate employers about their responsibilities under the Immigration and Nationality Act and to assist workers obtain early resolution of their claims of employment discrimination.
Settlement Reached with National Retail Chain
In March 2006, OSC entered into a settlement agreement with a national retail
chain resolving a charge filed by an asylee. The charge alleged that the retail
chain had committed document abuse during the employment eligibility verification
process when it discharged the individual for failure to produce one specific
document to verify her work authorization. Although the asylee produced other
legally accepted documents, the employer rejected them.
OSC's investigation revealed that three other non-citizens were discharged
for similar reasons, and that the employer required non-citizens to present
specific types of documents to verify work eligibility while allowing citizens
to present a variety of documents.
Under the settlement agreement, the retail chain agreed to provide back pay
ranging from $2,100 to $13,800 (totaling more than $22,000) to the four wrongfully-terminated
employees, to pay a civil penalty of $14,000, and to injunctive relief, including
the training of its personnel in proper employment eligibility verification
procedures.
Settlement Reached with Construction Firm
In March 2006, OSC entered into a settlement agreement with a construction
firm resolving a charge filed by a lawful permanent resident. The charge alleged
that the firm committed document abuse when it rejected the individual's valid
permanent resident card and Social Security card during the employment eligibility
verification process. Under the settlement agreement, the firm agreed to pay
more than $11,000 in back and front pay, a civil penalty, and other injunctive
relief, including the training of its employees in proper employment eligibility
verification procedures.
Resolution Between Poultry Processing Company and Work-Authorized Individual
In April 2006, OSC issued a letter of resolution dismissing a charge of document
abuse filed by a work-authorized immigrant. The charge alleged that the company
had wrongfully used the Basic Pilot Program to reverify the employment eligibility
of the individual even though the program's rules specifically prohibit using
the program for reverification purposes. The Basic Pilot Program is an electronic
employment eligibility verification program administered by the Department
of Homeland Security. In response to OSC's investigation, the company and
the charging party entered into a bilateral settlement that provided the charging
party with $3,400 in back pay. The company also agreed to accept OSC training
of its human resources managers on proper employment verification procedures.
Resolution Between Poultry Processing Company and Work-Authorized
Individual
In April 2006, OSC issued a letter of resolution dismissing a charge of document
abuse filed by a work-authorized immigrant. The charge alleged that the company
had wrongfully used the Basic Pilot Program to reverify the employment eligibility
of the individual even though the program's rules specifically prohibit using
the program for reverification purposes. The Basic Pilot Program is an electronic
employment eligibility verification program administered by the Department
of Homeland Security. In response to OSC's investigation, the company and
the charging party entered into a bilateral settlement that provided the charging
party with $3,400 in back pay. The company also agreed to accept OSC training
of its human resources managers on proper employment verification procedures.
Resolution Between Temporary Staffing Agency and Refugees
In December 2006, OSC issued letters of resolution dismissing three charges
of discrimination filed by refugees from Somalia. The charges alleged that
the staffing agency had committed citizenship status discrimination when it
terminated the three refugee workers. In response to OSC's investigation,
the staffing agency resolved the matter through bilateral settlement agreements
with the charging parties, pursuant to which each worker received $13,000
in back pay and the company agreed to conduct diversity training for management
and supervisory personnel to increase cultural sensitivity.
Outreach Events Calendar (2007)
Date | Location | Sponsor | Target Audience |
April 19 | Silverton, OR | Hurst Berry Farm Cooperative | Employers |
April 20 | Teleconference | Employers' Association of N.J. (OSC Grantee) | Employers |
April 25 | Dallas, TX | Catholic Charities of Dallas, Inc. (OSC Grantee) | Employers |
April 26 | Holyoke, MA | Legal Services Corporation of Central Mass (OSC Grantee) | Employers, workers & service providers |
April 26 | Bethesda, MD | Clark Concrete Contractors, LLC | HR Professionals |
April 30 | Atlanta, GA | Mexican American Legal Defense & Education Fund (MALDEF) | Workers & service providers |
June 12 | Arlington, VA | American Council on International Personnel Symposium | Employers |
June 19 | Louisville, KY | DARI Conference (at request of AFOP, OSC Grantee) | Farmworker advocates & service providers |
July 28-Aug 4 | Atlanta, GA | National Bar Ass'n Annual Convention | Immig Attys, advocates & service providers |
August 8 | Miami, FL | Florida's 2007 Statewide Refugee Services Conference | Advocates, service providers and employers |
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