Discrimination is Asking Aliens to See Green Cards- for Employment?

I have provided you with a link to a news report written by Jerry Seper of the Washington Times that appeared in the Tuesday, September 7th edition of that newspaper and should be of great concern to everyone. It reports on the filing of yet another lawsuit in the state of Arizona against an employer, the Maricopa County Community College District in Phoenix for discriminating against aliens by asking to see the alien cards “green cards” of foreign nationals before hiring them!

I have always made the point that our nation cannot simply secure the border by building a fence on the border and saying that all was done. The fact is that the enforcement of immigration laws from within the interior of the United States is of at least equal importance.

While there are a number of critical interior enforcement missions, such as combatting fraud and seeking to locate and apprehend aliens involved in criminal and/or terrorist activities, it is of great importance to combat the employment of illegal aliens. This is a point all of us who understand the need to effectively enforce the immigration laws of our country certainly understand. But even this seemingly commonsense requirement is more difficult to be accomplished than most folks understand.

The most basic question any diligent employer has in attempting to make certain that he does not hire an illegal alien is to know how to determine if an employee is, in fact, legally entitled to work in the United States. Herein lies the lunacy that was created when the Amnesty of 1986 was enacted. That law established the crime of “knowingly hiring an illegal alien.”

How is an employer to know if an employee is a United States citizen or an alien who is or is not entitled to work?

There is a handbook that the government provides to employers known as the M-274 Handbook. Here is the link to this important document: www.uscis.gov/files/nativedocuments/m-274.pdf

Here is an excerpt from the handbook that I would like you to read thoroughly – It begins on page 19 of the handbook:

Part Four Unlawful discrimination and Penalties for Prohibited Practices

Types of Employment Discrimination Prohibited Under the INA

Document Abuse

Discriminatory documentary practices related to verifying the employment authorization and identity of employees during Form I-9 process is called document abuse. Document abuse occurs when employers treat individuals differently on the basis of national origin or citizenship status in Form I-9 process. Document abuse can be broadly categorized into four types of conduct:

1. Improperly requesting that employees produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization;

2. Improperly requesting that employees present. particular document, such as a “green card,” to establish identity and/or employment authorization;

3. Improperly rejecting documents that reasonably appear to be genuine and belong to the employee presenting them; and

4. Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to produce particular documents the employer does not require other employees to produce.

These practices may constitute unlawful document abuse and should be avoided when verifying employment authorization. All employment-authorized individuals are protected against this type of discrimination. The INA’s provision against document abuse covers employers with 1 or more employees.

Citizenship Status Discrimination

Citizenship or immigration status discrimination occurs when an employer treats employees differently based on their citizenship or immigration status in regard to hiring, firing, or recruitment or referral for a fee. U .S. citizens, recent permanent residents, temporary residents under the IRCA legalization program, asylees, and refugees are protected. An employer must treat all of these groups the same. Subject to limited exceptions, the INA’s provision against citizenship or immigration status discrimination covers employers with 1 or more employees

Avoiding Discrimination in Recruiting, Hiring, and Form I-9 Process

In practice, you should treat employees equally when recruiting and hiring, and when verifying employment authorization and identity during Form I-9 process. You should not:

1. Set different employment eligibility verification standards or require that different documents be presented by employees because of their national origin and citizenship status. For example, you cannot demand that non-U .S. citizens present DHS- issued documents. Each employee must be allowed to choose the documents that he or she will present from the lists of acceptable Form I-9 documents. For example, both citizens and work-authorized aliens may produce a driver’s license (List B) and an unrestricted Social Security card (List C) to establish identity and employment authorization. However, documents that are clearly inconsistent may be rejected.

2. Request to see employment eligibility verification documents before hire and completion of Form I-9 because someone looks or sounds “foreign,” or because someone states that he or she is not. U .S. citizen.

3. Refuse to accept a document, or refuse to hire an individual, because a document has a future expiration date.

4. Request that, during reverification, an employee present a new unexpired Employment Authorization Document if he or she presented one during initial verification. For reverification, each employee must be free to choose to present any document either from List A or from List B. Refugees and asylees may possess employment authorization documents, but they are authorized to work based on their status, and may possess other documents that prove employment authorization from List A or List B to show upon reverification, such as an unrestricted Social Security card.

5. Limit jobs to U.S. citizens unless US citizenship is required for the specific position by law; regulation; executive order; or federal, state, or local government contract. On an individual basis, you may legally prefer a U .S. citizen or national over an equally qualified alien to fill a specific position, but you may not adopt a blanket policy of always preferring citizens over noncitizens.

According to the handbook and, consequently, the federal law- it is illegal for a prospective employer to ask to see any prospective employees documents before hiring that employee. It is also illegal to specifically ask an alien for his (her) green card even if they claim that they are a resident alien of the United States!

Stop and give this lunacy a moment to reflect on. The immigration laws require that all aliens who are 18 years of age or older, carry with them, at all times proof of alien registration. For lawful immigrants (permanent resident aliens) that proof is the “Green Card.”

The section of law to be found in the Immigration and Nationality Act that establishes this requirement is Title 1 of the United States Code, Section 1304(e) which states:

(e) Personal possession of registration or receipt card; penalties Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.

The law is extremely clear- all resident aliens who are at least 18 years of age are required to carry their Alien Registration Card “Green Card” on their person at all times but an employer can be sued if he specifically requires his new employee to show him that very same card!

All that the alien has to do, in order to be in compliance with the law is to show his new employer any cards he decides he wants to show that are listed on the Form I-9 or that are contained in the M-274 Handbook.

The list of documents provided on the Form I-9 and the Handbook are divided into three columns- A, B. and C.

Here is the list of acceptable documents as enumerated in the Handbook:

LIST A: Documents That Establish Both Identity and Employment Authorization All documents must be unexpired.

1. U.S. Passport or Passport Card

2. Permanent Resident Card or Alien Registration Receipt Card (Form I-551)

3. Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa (MRIV)

4. Employment Authorization Document (Card) that contains a photograph (Form I-766)

5. In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport

6. Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMIwith Form I-94 or Form I-94A bearing the same name as the passport and containing an endorsement of the alien’s nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form

LIST B: Documents That Establish Identity All documents must be unexpired.

For individuals 18 years of age or older:

1. Driver’s license or ID card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address

2. ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address

3. School ID card with a photograph

4. Voter’s registration card

5. U.S. military card or draft record

6. Military dependent’s ID card

7. U.S. Coast Guard Merchant Mariner Card

8. Native American tribal document

9. Driver’s license issued by a Canadian government authority

For persons under age 18 who are unable to present a document listed above:

10. School record or report card

11. Clinic, doctor or hospital record

12. Day-care or nursery school record

LIST C: Documents That Establish Employment Authorization All documents must be unexpired.

1. U.S. Social Security account number card other than one that specifies on the face that the issuance of the card does not authorize employment in the United States. NOTE: A copy (such as a metal or plastic reproduction) is not acceptable.

2. Certification of Birth Abroad issued by the U.S. Department of State (Form FS-545)

3. Certification of Report of Birth issued by the U.S. Department of State (Form DS-1350)

4. Original or certified copy of a birth certificate issued by a state, county, municipal authority, or outlying possession of the United States bearing an official seal

5. Native American tribal document

6. U.S. Citizen Identification Card (Form I-197)

7. Identification Card for Use of Resident Citizen in the United States (Form I-179)

8. Employment authorization document issued by DHS (other than those listed under List A)

Here is something else for you to consider- there are so many possible documents that it is entirely possible that an alien may show an employer, for example, a driver’s license from a distant state. In such an instance, the license may well be the only such license the employer has ever seen. Imagine, for example, the employer has lived and worked for his entire life in South Carolina and he hires an alien who provides the employer with a valid driver’s license from the state of Oregon- what is the likelihood that the employer has ever seen a driver’s license from that state before? Yet if that employer, out of an abundance of caution asks for some other identification document, he is violating the law and can be prosecuted by the Department of Justice’s Civil Rights Division and may find himself being sued by the employee for having violated that employee’s civil rights!

On the other hand, an employer who is accused of intentionally hiring an illegal alien may be fined and/or criminally prosecuted!

Clearly the Immigration Reform and Control Act did nothing to “control” illegal immigration and did nothing more than create the illusion of addressing this serious issue while providing employers with yet another headache!

The law should have required that aliens who are lawful immigrants of the United States be required to show the “Green Cards” to employers since the law already required that they carry them with them at all times.

Obviously this simple solution would have removed much of the confusion from the system- something the Reagan Administration and the architects of this legislative nightmare had no intention of doing! As. have noted on every occasion- both political parties have been responsible for the immigration crisis that is hammering our nation and our citizens from so many directions and this must stop!

The administration and our elected representatives must take to heart, the statements made by the union leaders who represent the employes of Immigration and Custom Enforcement who gave the “leadership” of that beleaguered agency a “No confidence” vote recently and do whatever is necessary to address these massive deficiencies as quickly and effectively as possible. The security of our nation and the safety of our citizens must, without equivocation take priority over any political goals or agenda.

It is unacceptable that the citizens of this nation be alienated by their own government especially where border security and the enforcement and administration of our nation’s immigration laws are concerned!

A country without secure borders can no more stand than can a house without walls!

November 2nd cannot come fast enough!

We the People, throughout this nation must seek opportunities to make it clear to our political “representatives” that we understand their game plan and won’t tolerate it!

I believe our nation is greatly benefited by the rich diversity of our people which is why I could never imagine living anywhere except New York City, arguably the most diverse city in our nation if not, in fact, the world. However, my idea of diversity most certainly does not include members of MS-13, the Mexican drug cartels and members of al-Qaeda!

We the People can add to the consternation of those politicians who are failing to live up to their oaths of office by contacting them and making it abundantly clear that election day is coming and they should think of election day as their personal “Day of Reckoning!”

Our government must live up to its obligation of protecting its own citizens and, indeed, all who are present in our country from the criminals and terrorists who would threaten our lives and the survival of our nation and our way of life. In the end, the government is actually those who are elected to act as our “leaders.” Those who fail to truly lead and look out for those they are supposed to represent, need to be sent packing this coming Election Day!

If our country is to survive and if our children and their children are to get their share of the “American Dream” the citizens of this nation must take their citizenship seriously!

We the People must be the best citizens we can be, citizens who are worthy of the gallantry demonstrated by our valiant men and women in the military, law enforcement and firefighters, who routinely go in harm’s way in defense of this nation and our citizens.

My goal is to point out our nations many failings before more victims pay the ultimate price for the incompetence and ineptitude of our government.

The first step in problem-solving is to first identify the problems and vulnerabilities and then devise strategies to overcome them.

Any politician who refuses to work to secure our borders and create an immigration system that has integrity is either corrupt or too dumb to keep his (her) job. Any politician, irrespective of party affiliation who favors Comprehensive Immigration Reform and the outrageous betrayal that this would represent given the national security implications that this program would have, should be shown the door at the next election!

If you find yourself to be in agreement with what I had to say, I ask that you forward it to as many of your friends and family members as possible and encourage them to do the same. We need to create a “Bucket Brigade of Truth!”

In just two months, each and every member of the House of Representatives is up for reelection. More than one third of the members of the United States Senate will have to face their constituents. They need to be reminded that they work for us, We the People!

However, the practice of good citizenship does not end in the voting booth, it only begins there.

The large scale apathy demonstrated by citizens of this nation has emboldened elected representatives to all but ignore the needs of the average American citizen in a quest for massive campaign funds and the promises of votes to be ostensibly delivered by special interest groups. There is much that we cannot do but there is one thing that We the People absolutely must do- we must stop sitting on the sidelines!

The collective failure of We the People to get involved in make our concerns known to our politicians have nearly made the concerns of the great majority of the citizens of this nation all but irrelevant to the politicians. I implore you to get involved!

If this situation concerns you or especially if it angers you, I ask you to call your Senators and Congressional “Representative.” This is not only your right- it is your obligation!

All I ask is that you make it clear to our politicians that we are not as dumb as they hope we are!

We live in a perilous world and in a perilous era. The survival of our nation and the lives of our citizens hang in the balance.

This is neither a Conservative issue, nor is it a Liberal issue- simply stated, this is most certainly an AMERICAN issue!

You are either part of the solution or you are part of the problem!

Democracy is not a spectator sport!

Lead, follow or get out of the way!

Please check out my website: http://michaelcutler.net/

Click on the links below to RePatriot Radio and listen to the internet radio show I host on Friday evenings from 7:00 PM to 9:00 PM Eastern Daylight Savings Time:

“Bordering on Insanity!” Listen Live! website or www.libertyandfreedomradio.net

Audience email questions/comments [email protected]

Michael Cutler
Michael Cutler, a former Senior INS Investigator, an expert witness in more than a dozen Congressional Hearings is a Fellow at the Center for Immigration Studies and an advisor to the '911 Families for a Secure America.' He writes about the nexus between immigration and national security.