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I-9 E-Verify Immigration Compliance

OSC Settles Employer Document Abuse Case for $230,000

Rating: 3 votes, 5.00 average.
By Bruce Buchanan, Siskind Susser

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The Justice Department, through the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, has reached a settlement with Santa Barbara, CA based Real Time Staffing Services, LLC more commonly known as Select Staffing – a national staffing company with more than 400 offices throughout the United States. The settlement resolves claims that the company engaged in discriminatory documentary requests based on citizenship status, in violation of the Immigration and Nationality Act (INA).

An investigation by the Justice Department found there was reasonable cause to believe that Select Staffing subjected work-authorized non-U.S. citizen new hires to unlawful demands for specific documentation issued by the U.S. Department of Homeland Security in order to verify their employment eligibility, while U.S. citizens were allowed to present their choice of documentation.

The INA’s anti-discrimination provision prohibits employers from placing additional documentary burdens on work-authorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin.

Under the settlement agreement, Select Staffing will pay $230,000 in civil penalties to the United States, establish a $35,000 back pay fund for lost wages, undergo training on the anti-discrimination provision of the INA, revise its employment eligibility verification policies and be subject to monitoring of its employment eligibility verification practices for a period of three years.

Going forward, Select Staffing has agreed to avoid discrimination in the employment eligibility certification and re-verification process by doing the following:

1) honoring documentation that on its face reasonably appears to be genuine, relates to the person, and satisfies the requirements of 8 U.S.C. § 1324a(b);
2) not requesting more or different documents than are required by law; and
3) permitting all employees to present any document or combination of documents acceptable by law.

This case follows others that were referred to the Department of Justice from U.S. Citizenship and Immigration Services (USCIS) based on alleged abuses or discrepancies USCIS discovered within its E-Verify system. As I have noted in past blog posts, such referrals are becoming more common in OSC cases.

A copy of the settlement agreement is available here.

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  1. Retired INS's Avatar
    As an immigration manager, I attended the first INS national conference on employer sanctions. I then visited as many Central California companies as I could to explain the rules. Santa Barbara wasn't in my area, but I received permission from INS Los Angeles to be a guest speaker at an employer conference in Santa Barbara. The rules are really simple and its a shame employers don't follow them. The guidance I gave was:
    1. Do not ask a job applicant's immigration status until after the interview, and only if you have decided to hire the applicant.
    2. Until the interview is over, treat everyone as being employment authorized
    3. After the interview is over, give the I-9 to all applicants being hired
    4. Look at the list of acceptable documents for the two questions (a) identity, and (b) employment authorization
    5. If the document presented matches the I-9 requirement, accept it and don't ask for anything else.

    The biggest problem I encountered while enforcing the I-9 rules for the INS was employers wanting to see a green card if the applicant claimed to be a resident. If the applicant presented a social security card, that is acceptable. It isn't my idea of acceptable, but it is the legally acceptable and employers must abide by the rules in the I-9 handbook. It really isn't that complicated.
  2. Intecon's Avatar
    Let's face it . . . these provisions of the law really suck. Employers live in a real world; the world of immigration law is la-la land. The suggestion of Retired INS to fully interview someone and not ask for immigration status until the offer of employment is about to be made is absurd. Why wast HR time and resources interviewing someone, maybe even taking them to lunch at a second employment interview, running their resume and qualifications through multiple people at the company, determining they are the perfect candidate for the job, only to have them spring on you at the very end, "Well, I'm not work authorized", or "Yes, I'll take the job, but you will need to file an H-1B petition for me, and I can't start work until next October 1st" . . . . But wait, H-1Bs are over-subscribed and no petitions can even be filed until next April, with a start date of October 2015! . . . . GET REAL. Ask for employment authorization up front and to Hell with all of this cat-and-mouse nonsense. What harm can there be a simple, "Are you authorized to work in the USA"? The answer is either "Yes" or "No" or in rare instances "I don't know." and in my opinion anyone who does not know will not be hired by me and we need not waste any more time in the interview and selection process.
  3. Retired INS's Avatar
    Intecon obviously lives in a different world than most employers in the San Joaquin Valley. As an INS official advising on employer sanctions, I visited employers such as giant chicken processors, Zackey Farms and Foster Farms. They hire hundreds of people and don't take job applicants out for lunch. I didn't write the employer sanctions law, I only enforced it. We only imposed fines when employers knowingly hired illegal aliens. The job of going after employers who discriminate is the job of the Office of Special Counsel.

    You may ask about immigration status in advance, but what if you are handed a driver's license to prove identity and a social security card to prove employment authorization? Are you going to ask to see a green card or proof of current non-immigrant work status? Once you ask for a specific document you are in violation of the law. I agree this still leaves the employer at risk. The applicant's current employment status may be for a different employer. Authorization from immigration may be required to change employers. If you wait until you have made a job offer, it is unlikely an applicant will complain about showing documents, however, if you ask for a specific document and eventually fail to hire that applicant, you are much more likely to be complained about.

    From the comments, Intecon is in violation of the discrimination section of the employer sanctions law. I understand the frustration, but the advice I gave as an INS official had to legally sound. It was and still is. By the way, in my 29 years as a federal manager, I interviewed thousands of job applicants and hired hundreds. I never took an applicant to lunch as part of the interview. I realize the private sector does things differently. Had I taken someone to lunch, the government would not have paid for the lunch. I doubt Intecon paid for the lunch with his own money. To me, it seems as if he was using the job interview to get a free lunch. As a federal manager I was offered hundreds of free lunches from attorneys and others who wanted my advice or opinion. I always opted to discuss business in my office, where I was in complete control. Too many government managers sell their souls for free lunches and gifts and soon find they have gone to the dark side.
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