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IER Settles with Ascension to Resolve Software-Based Immigration-Related Discrimination Claims

The Civil Rights Division’s Immigrant and Employee Rights Section (IER) of the Department of Justice (DOJ) has reached a settlement with Ascension Health Alliance (Ascension), a health care organization with more than 2,600 sites, including 146 hospitals, in 19 states and D.C.

The settlement resolves claims that Ascension violated the Immigration and Nationality Act (INA) when it discriminated against work-authorized non-U.S. citizens because of their citizenship status by requesting more or different documents than necessary when attempting to reverify their continued work authorization. 

Based on its investigation, the IER determined Ascension automatically requested its non-U.S. citizen employees present new documents to prove their continued work authorization, even in situations where it was not required. Ascension utilized a customized employment eligibility verification software program to electronically complete the Form I-9 and track the expiration dates of non-U.S. citizen employee documents. The investigation found Ascension improperly programmed the software to send automated e-mails requesting proof of continued work authorization to all non-U.S. citizen employees, including U.S. nationals, lawful permanent residents, asylees and refugees, close to the expiration date of the documents they provided when completing the Form I-9. These non-U.S. citizen employees often presented documents that did not require reverification of employment eligibility. In some instances after sending these e-mails, Ascension further required non-U.S. citizen employees to present new documents in order to continue working.  In contrast, Ascension did not program the software to send e-mails to U.S. citizens and therefore did not notify U.S. citizens near the expiration of their documents.

Federal law allows all work-authorized individuals, regardless of citizenship status, to choose which valid, legally acceptable documentation to present to demonstrate their identity and authorization to work in the United States. Many non-U.S. citizens, including lawful permanent residents, refugees, and asylees, among others, have work authorization that does not expire, and are eligible for several of the same types of documents as U.S. citizens (such as driver’s licenses and unrestricted Social Security cards) to prove their work authorization.

Under the terms of the settlement agreement, Ascension will pay the United States a civil penalty of $84,832.00 and train its employees on the requirements of the INA’s anti-discrimination provision, including an IER-provided training. Ascension will also revise its policies to ensure that they prohibit requesting more or different documents, specifying documents, or rejecting valid documents, because of an individual’s citizenship, immigration status, or national origin in the recruitment, referral, or hiring processes, and during the Form I-9/E-Verify employment eligibility verification and reverification processes; post IER’s poster, “If You Have The Right to Work”, in English and Spanish; and be subjected to departmental monitoring and reporting requirements for three years.

This is a major settlement because a number of employers are utilizing their own software for I-9 compliance purposes or are customizing the software. In so doing, the software at times is not complying with the INA. If your company utilizes or customizes software for I-9 compliance purposes make sure it is compliant under the INA.

If you want to know more information on issues related to 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.