Filing an Immigration-Related Employment Discrimination Charge

NILC INFORMATION PACKET

LOS ANGELES (Headquarters)

3435 Wilshire Boulevard

Suite 2850

Los Angeles, CA 90010

213 639-3900

213 639-3911 fax

WASHINGTON, DC

1444 Eye Street, NW

Suite 1110

Washington, DC 20005

202 216-0261

202 216-0266 fax

Filing an

Immigration-Related

Employment

Discrimination

Charge

A Do

Yourself Packet

for Immigrant Workers

This Packet Contains:

• Basic Information Brief:

Employer Sanctions and Discrimination

• Sample I-9 Form

• Practical Tips on Dealing with a

Discriminatory Employer

• How to File a Discrimination Charge

• Instructions on Filling out the Charge Form

• Sample Charge and Complaint Forms

NAT IONAL IMMIGRAT ION LA W CE NTE R

Filing an Employment Discrimination Charge Packet PAGE 2

Filing an Employment Discrimination Charge

In 1986, Congress passed the Immigration Reform and Control Act (IRCA), which made it unlawful for

employers to knowingly hire an undocumented worker and established an

employment eligibility verification

procedure that employers must follow to verify that employees are authorized to work in the United States.

This procedure requires all employees to provide proof of their identity and authorization to work in the U.S.

by filling out Form I-9. Given the increased immigration enforcement at the workplace, some employers may

be afraid of being sanctioned (either with civil or criminal penalties) while others may be confused with the

different types of new verification programs. As a result, some employers may refuse to hire immigrants and

other workers who “look or sound” foreign. Other employers refuse to accept valid work authorization

papers or will only hire individuals who are lawful permanent residents or U.S. citizens. For these reasons,

IRCA also included anti-discrimination provisions that make it unlawful for employers to discriminate or

retaliate against workers based on citizenship or immigration status; or to request certain or specific work

authorization documents from workers.

If you think an employer did not hire you because you are not a U.S. citizen, you “look or sound” foreign,

or the employer wouldn’t accept your valid work authorization documents, you may be the victim of illegal

employment discrimination under federal immigration law. This packet will provide you with information

about your right to be free of employment discrimination, and how to file a discrimination charge to help you

protect your rights as a worker.

For more information, see NILC’s Basic Information Brief: Employment Authorization and Reverification.

NAT IO N A L IM M I GRAT ION LA W CE NTE R

Filing an Employment Discrimination Charge Packet PAGE 3 Employer Sanctions and Discrimination

Basic Information Brief:

Employer Sanctions and Discrimination

APRIL 2009

What are employer sanctions?

Federal law makes it unlawful for employers to knowingly hire workers who are not authorized to work in

the United States. The law provides for penalties—referred to as “employer sanctions”— for employers that

fail to complete Form I-9, who hire workers knowing they are not work-authorized, or that continue to

employ workers knowing they are undocumented.

How do sanctions affect immigrant workers?

It is important that workers, their unions and worker advocates understand the employer sanctions law to

ensure that workers’ rights are protected. Some employers, concerned about the prospect of sanctions, may

wrongly believe they can escape legal problems by hiring U.S. citizens only or avoiding workers who they

think sound or look foreign. Others may attempt to use the verification procedures selectively, to get rid of

workers they think are “troublemakers” or intimidate those who try to organize unions or otherwise assert

their labor rights. To protect workers from such discriminatory practices, Congress, in enacting the employer

sanctions provision, built important safeguards into the law. As a result, employers may also face legal

penalties if they discriminate against lawfully authorized workers based on citizenship status or national origin

or otherwise engage in what the law refers to as “

immigration-related unfair employment practices.”

After sanctions were enacted, a number of studies documented the discrimination that resulted. In a national

study, the General Accounting Office (GAO) estimated that 14 percent of all employers began to hire only

U.S. citizens after employer sanctions were put into place. These practices are illegal, but the

antidiscrimination provisions can only be effective if workers are aware of their rights and know how to

enforce them.

Id.

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Filing an Employment Discrimination Charge Packet PAGE 4 Employer Sanctions and Discrimination

Understanding Employer Sanctions

and the I-9 Process

Prior to 1986, it was not unlawful for an employer

to hire “undocumented” workers— workers who

lack authorization to work in the United States. As

a result of IRCA, however, it is now unlawful for

any employer to

knowingly hire a worker who is not

authorized to work in this country. To comply with

the law, employers are required to verify the identity

and employment eligibility of all employees hired

after November 6, 1986 and to complete a special

government form— the I-9 Employment Eligibility

Verification Form, or “Form I-9” for short—for

each new hire. This procedure is binding on all

employers, regardless of size.

HOW DO EMPLOYERS VERIFY

EMPLOYMENT ELIGIBILITY?

The law requires that the employer complete

Form I-9 for all new hires, not just those the

employer believes are non-citizens or

undocumented.

To enable the employer to complete the form,

workers must provide the employer with documents

that prove both the worker’s

identity and eligibility to

work,

as explained further below. Workers generally

must be allowed three business days to produce

documentation and they should not be required to

produce any documents until they have actually

been hired for a position. If a worker has lost a

document or documents necessary to establish

identity or employment eligibility, an employer must

accept a receipt issued by the U.S. Citizenship and

Immigration Services (USCIS) showing that the

worker has applied for a replacement document and

must give the worker up to 90 days from the date of

hire to provide a valid original document.

The employer is required to keep completed

Forms I-9 on file for a specified period of time and

must make them available for inspection, if

requested, by the Department of Homeland Security

(DHS) U.S. Immigration and Customs Enforcement

(ICE), the Office of Special Counsel for

Immigration Related Unfair Employment Practices

(OSC), or the U.S. Department of Labor (DOL).

Employers who fail to complete the forms, or who

continue to employ workers they know lack valid

employment authorization, are subject to civil and

criminal penalties.

WHAT IS FORM I-9?

Form I-9 is the document that the worker and the

employer complete in order to verify the worker’s

authorization to work in the U.S. Form I-9 contains

three sections, as well as a list of documents which

may be used to prove an employee’s identity and

work eligibility. In April 2009, USCIS changed

Form I-9 thereby modifying the number and type

of documents that workers could use. USCIS may

revise the Form I-9 in the future

SECTION 1

The first section of Form I-9 is to be completed

by the worker and requires that she sign the form

under penalty of perjury. The worker must supply his or

her name, address, date of birth, and must check a

box indicating whether she is a U.S. citizen or

national, a lawful permanent resident, or an alien

authorized to work in the United States. Noncitizen

workers must also provide their Alien number

(assigned to them by DHS and listed on all

documents the agency issues to them) and the

expiration date of their authorization to work, if any.

Note that asylees’ and refugees’ authorization to

work does not expire. While there is a space for the

worker’s Social Security number, it is not required.

However, if the worker provides a Social Security

card as proof of her work authorization, the

employer will need to list that in Section 2. If a

worker needs assistance in completing section 1 (i.e.

limited English proficiency or unable to write),

someone can help the worker complete this section.

That person would have to sign that he/she

prepared or translated this section for the worker.

SECTION 2

The second part of the form requires the

employer to list the documents which were

produced by the worker to verify his/her identity

and employment eligibility. As explained below,

there are three groups of documents out of which a

worker must choose.

It is the worker’s choice, not

the employer’s, as to which acceptable document or

combination of acceptable documents to use.

“List A” documents are those that establish both a

worker’s

identity (who he or she is) as well as

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Filing an Employment Discrimination Charge Packet PAGE 5 Employer Sanctions and Discrimination

eligibility to work (legal work papers). If a worker

provides one document from List A, he/she is not

required to provide any other document to complete

Form I-9.

If a worker does not have, or chooses not to

provide, a “List A” document to complete Form I-9,

he/she must choose one document from “List B”

and a second from “List C” to provide to the

employer. “List B” documents establish a worker’s

identity. “List C” documents establish a worker’s

employment eligibility. Again, it is the worker’s

choice

, not the employer’s, as to which acceptable document

or combination of acceptable documents to use.

However, if

a worker presents a valid Social Security card as a

List C document that states on it “

Not Valid for

Work Without DHS Authorization,”

the employer may

indeed ask the worker for a DHS-issued document

that establishes he/she is authorized to work.

The currently acceptable listed documents appear

in the box at the end of this memo. This list of

documents includes the recent changes USCIS made

to Form I-9 in April of 2009. All employers as of

April 3, 2009, are required to use the new I-9 form.

However, employers are NOT required to reverify

the work authorization documents of and complete

new I-9 forms for workers who already have

completed I-9 forms on file. It is important for

workers and advocates to remember that the

worker, not the employer, has the right to choose which

of the listed documents or combination of

documents to show to satisfy the I-9 requirements.

An employer’s request for “more or different

documents” than are required, or a refusal to accept

certain documents that appear “reasonably genuine”

and to related to the worker presenting them may

violate the Immigration and Nationality Act’s (INA)

antidiscrimination protections. Such violations are

referred to as

“document abuse” and are discussed

more fully below.

SECTION 3

The third section of Form I-9 is entitled

“Updating and Reverification.” It is used by an

employer to reverify the employment eligibility of

employees who, when they first completed Form I-

9, presented a document showing that their

employment authorization would expire on a certain

date. In most but not all cases, when a worker’s

employment authorization expires, the employer

must reverify on Form I-9 that the employee is still

work-authorized and must do so no later than the

expiration date on the employee’s work

authorization. Please note that while the “green

card” that lawful permanent residents often present

bears an expiration date, an employer should NOT

reverify a lawful permanent resident’s authorization.

In addition, some individuals who have Temporary

Protected Status (TPS) can continue to work with an

expired Employment Authorization Document

when DHS publishes a notice in the Federal

authorization.

Understanding the

Antidiscrimination Protections

When it adopted the employer sanctions,

Congress, as noted above, also added important

antidiscrimination provisions to the law to protect

workers’ rights. As a result, federal immigration law

makes it illegal for employers to engage in what are

called

“immigration-related unfair employment

practices.”

Such practices include discrimination

based on a person’s national origin or citizenship

status, or committing unfair documentary practices

while verifying an employee’s employment eligibility,

as well as retaliation against employees who assert

their rights under the immigration laws. The various

types of discrimination prohibited by the law, as well

as the procedures for enforcing and protecting

employee rights, are outlined below.

WHAT DISCRIMINATION IS PROHIBITED?

Citizenship status discrimination

Citizenship status discrimination occurs when

workers are denied employment or terminated by

their employer because of their citizenship or

immigration status. The most common form of

citizenship status discrimination is a “citizens only”

hiring rule. Rules requiring immigrant workers to

produce “green cards” may also constitute

citizenship status discrimination, as not all work-

authorized immigrants possess green cards and all

employees have the right to choose which

acceptable document or combination of acceptable

documents to present. U.S. citizens, lawful

permanent residents, temporary residents, asylees

NAT IO N A L IM M I GRAT ION LA W CE NTE R

Filing an Employment Discrimination Charge Packet PAGE 6 Employer Sanctions and Discrimination

(individuals granted asylum), and refugees are all

protected from citizenship status discrimination.

Other examples of unlawful citizenship status

discrimination include employers who refuse to

employ asylees and refugees because of their time-

restricted employment authorization documents.

National origin discrimination

National origin discrimination occurs when

workers are denied employment or otherwise treated

differently from other employees because of their

place of birth, ancestry, native language, or accent or

because they are perceived as looking or sounding

“foreign.” Any one who is work-authorized is

protected from national origin discrimination. There

may often be overlap between citizenship and

national origin discrimination.

Document abuse discrimination

Document abuse—the most common type of

immigration-related unfair employment practice—

occurs when an employer requests more or different

documents from a worker than are required to

complete Form I-9 or rejects documents provided

by the employee that reasonably appear to be

genuine. Not all work-authorized non-citizens are

issued the same documents. As long as the

documents are listed on the back of Form I-9,

appear to be genuine on their face, and relate to the

worker in question, the employer is obliged to

accept them. Failure to do so, with the intent to

discriminate, may constitute illegal document abuse.

All work-authorized individuals are protected against

document abuse.

WHAT CAN WORKERS DO TO ENFORCE

THEIR RIGHTS?

The Office of Special Counsel for

Immigration-Related Unfair Employment

Practices

—“OSC” for short—is a special

government agency that was created to enforce the

anti-discrimination provision of federal immigration

law and protect worker rights. A part of the U.S.

Department of Justice’s Civil Rights Division, OSC

has multilingual staff and attorneys ready to assist

workers, their unions, or other employee advocates,

along with employers and the general public on

matters involving employment discrimination. For

information or assistance in filing a charge of

discrimination, workers may call the OSC’s toll-free

hotline at 1-800-255-7688 or 1-800- 237-2515 (TDD

for hearing impaired). There is also an automated

employer hotline at 1-800-255-8155 or 1-800-237-

2515 (TDD).

Charges of discrimination should be faxed to OSC

at 1-202-616-5509. You can also write to the OSC at

the following address:

U.S. Department of Justice

Civil Rights Division

Office of Special Counsel for Immigration-Related

Unfair Employment Practices

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Website: http://www.usdoj.gov/crt/osc

E-mail Address: osccrt@usdoj.gov

Workers who think they have been discriminated

against should contact the OSC or seek legal help

right away from a community organization, legal aid

office, or other nonprofit agency that assists

immigrants and refugees with legal matters. The

OSC has grantees throughout the country that

conduct outreach and education efforts to help

educate workers and their advocates, employers, and

the general public about the antidiscrimination

protections under the federal immigration law.

These grantees may also be able to assist workers

with filing a charge with OSC. A list of OSC

grantees can be obtained through OSC’s website:

http://www.usdoj.gov/crt/osc/htm/news.htm.

Generally, complaints of discrimination, including

the immigration-related unfair employment practices

discussed above, must be filed within

180 days of

the time the discrimination occurred

. Victims of

discrimination may be entitled to back pay and/or

reinstatement, and their employers may be subject to

additional monetary penalties.

Workers who are represented by unions should be

sure to notify their union representative, as well as

the OSC, if they believe they have been

discriminated against. In addition to the rights and

protections of federal law, unionized employees may

have additional protection from discrimination

under their collective bargaining agreements.

Deadlines for filing grievances under a labor

contract are usually very short so it is important to

act quickly to get help.

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Filing an Employment Discrimination Charge Packet PAGE 7 Employer Sanctions and Discrimination

Finally, the anti-discrimination protections in

federal immigration law, discussed above,

supplement the broad prohibitions against

discrimination contained in Title VII of the Civil

Rights Act of 1964, another federal law. Title VII

makes it unlawful for employers to engage in

employment discrimination based on race, national

origin, religion, color, and sex. Charges of

discrimination in violation of Title VII must be filed

with the Equal Employment Opportunity

Commission (EEOC). The OSC and the EEOC

have an agreement to cooperate in the handling of

discrimination charges filed with one of the agencies

which involves questions of discrimination within

the other agency’s area of responsibility.

For questions about Title VII, contact the EEOC at:

1-800-669-4000

1-202-275-7518 (TDD)

1-800-669-6820 (TTY)

www.eeoc.gov

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List of Legal Work Documents

** The I-9 Form May Be Revised at Any Time in the Future. Visit www.uscis.gov for the Most Current Version. **

Workers can choose:

One document – One from List A – to establish both identity and eligibility to work

Two documents – One from List B – to establish identity

and

One from List C – to establish eligibility to work

**Please note that as of April 3, 2009 all documents presented during the I-9 process must be unexpired. If there

is no expiration date, they are considered unexpired.**

List “A” Documents –

Establish Identity and

Employment Eligibility

1. U.S. Passport or U.S. Passport

Card

2. Permanent Resident Alien Card

or Alien Registration Receipt

Card (Form I-551)

3. Foreign passport with

temporary I-551 stamp or

temporary I-551 notation on

machine-readable immigrant

visa

4. Employment Authorization

Document that contains a

photograph (Form I-766)

5. Foreign passport with Form I-

94, bearing the same name as

the passport and containing an

unexpired endorsement of the

person’s nonimmigrant status,

if the proposed employment

doesn’t conflict with any listed

restrictions

6. Passport from the Federal

States of Micronesia or the

Republic of the Marshall

Islands with an unexpired

Form I-94 or I-94A

List “B” Documents –

Establish Identity

1. Driver’s license or ID card

issued by a state or outlying

possession of the U.S.,

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. Daycare or nursery school

record

List “C” Documents –

Establish Employment Eligibility

1. Social Security card issued by

the Social Security

Administration (other than a

card stating it is not valid for

employment)

2. Certification of Birth Abroad

issued by the Department of

State (Form FS-545)

3. Certification of Report of Birth

Abroad issued by the

Department of State (Form

DS-1350)

4. Original or certified copy of a

birth certificate issued by a

state, county, or municipal

authority or outlying possession

of the U.S. bearing an official

seal

5. Native American tribal

document

6. U.S. Citizen ID Card (Form I-

197)

7. ID Card for use of Resident

Citizen in the U.S. (Form I-

179)

8. Employment authorization

document issued by the DHS

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Filing an Employment Discrimination Charge Packet PAGE 9 Tips of Dealing with a Discriminatory Employer

Practical Tips on

Dealing with a Discriminatory Employer

WHAT SHOULD I DO IF I THINK AN

EMPLOYER HAS DISCRIMINATED

AGAINST ME?

Educate yourself about your rights on the job.

If you think you have been treated unfairly on the

job, it is important for you to find out about your

rights. Local legal aid offices, community-based

organizations, workers’ centers, unions, or churches

may have written information about your rights on

the job. You might be able to find a listing of some

of these groups in your local telephone directory

under “community resources.”

Get help right away.

Most complaints against employers must be filed

within 180 days. Try to find a local legal aid office

or community organization to help you. Find out if

there are any workers’ rights clinics in your area

where you can talk to an employment law expert

about why you think you are being discriminated

against.

Document the problem.

Even if you are not sure that you have a legal

claim, make sure to document the problem well.

For example, if an employer refused to hire you

because you did not show a specific immigration

document, or because you look or sound like you

were born outside the U.S., you should make sure to

get the name of the person who refused to hire you.

Make sure you write down the date you went to

apply, and the name and address of the employer. If

you filled out an application, keep a copy (if

possible) for your records. If you saw a job

announcement stating that only U.S. citizens should

apply or that English is required for the job when

you think it should not be, keep a copy of the

announcement. Keeping records of this kind of

information will help you if you decide to file a

discrimination charge later.

If you have been hired but start experiencing

unfair treatment once on the job, it is important to

document the problem in case you are ultimately

fired. For example, if you are mistreated because of

your accent or because you were born in another

country, it is important that you write down as soon

as possible a description of any specific incidents,

when they took place, who was present, who said

what, and the names of any potential witnesses.

These notes will help you assess the strength of your

case if you decide to file a discrimination charge.

Keep good records.

If the employer has fired you or refused to hire

you, continue to look for a new job. Keep written

notes about your job search (where you have gone

to apply for work, dates when you applied, what

kinds of jobs you’ve applied for). If possible, keep

business cards with the name and address of the

companies where you applied. If you are collecting

unemployment benefits, keep copies of all that

paper work, including the forms showing your job

search efforts. Keep copies of the payments you get

under unemployment. If you get a new job, keep a

record of how much money you make (save your

pay stubs, make copies of your checks before you

cash them, or write down the dates and amounts

you were paid in a calendar or notebook). This will

help you if you decide to file a case against your old

employer.

WHERE CAN I GO FOR ASSISTANCE IF I

WANT TO FILE A CHARGE?

A government agency in Washington D.C. can

help workers who think they have been

discriminated against. It is called the Office of the

Special Counsel for Immigration-Related Unfair

Employment Practices, or “OSC” for short. The

OSC investigates charges of employment

discrimination. The OSC will not charge you any

money.

The OSC has a telephone number you can call for

free. You can ask questions and find out if the OSC

thinks you may have a basis for filing a charge of

discrimination against an employer. OSC will also

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Filing an Employment Discrimination Charge Packet PAGE 10 Tips of Dealing with a Discriminatory Employer

call your employer if it has done something wrong

and try to get it to fix the problem right away, so

that you can get back to work and don’t have to file

a charge. If you think an employer did not hire you

because you are not a citizen, because the employer

did not want to accept the work papers you

provided, or because you “look or sound foreign,”

call the hotline for help at:

Office of Special Counsel (OSC)

1-800-255-7688

1-800-237-2515 (TDD for the hearing impaired)

Charges of discrimination should be faxed to OSC

at 1-202-616-5509. You can also write the OSC.

The address is

U.S. Department of Justice

Civil Rights Division

Office of Special Counsel for Immigration-Related

Unfair Employment Practices

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

If you have access to the Internet, you can contact

them through:

Website: www.usdoj.gov/crt/osc

E-mail Address: osccrt@usdoj.gov

IF I CALL THE OSC, WILL THEY

CONTACT IMMIGRATION?

OSC is separate from DHS and ICE, and does not

have anything to do with detaining or deporting

immigrants. No one who calls OSC’s hotline will be

referred to immigration authorities. If you are an

undocumented worker, you can still call the OSC to

report an employer which you believe may be

violating the INA’s anti-discrimination laws. You

may also wish to remain anonymous. However, you

are not

eligible to file a charge with the OSC- only

workers lawfully authorized to work are protected

by the immigration law’s antidiscrimination

provisions.

If you are undocumented and you have a potential

claim under some other law, the OSC would refer

you to the appropriate agency enforcing that law.

The OSC could also refer you to a community-

based organization that might be able to assist you

in asserting your workplace rights. Remember, you

may also choose to remain anonymous and still

obtain helpful information.

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Filing an Employment Discrimination Charge Packet PAGE 11 How to File a Discrimination Charge

How to File a

Discrimination Charge

WHAT DOES IT MEAN TO “FILE A CHARGE”

WITH THE OSC?

When you file a charge with the OSC, you are

formally asking the OSC to find out whether the

employer discriminated against you. You can file a

charge by using the OSC Charge Form that is

included with this packet. Once you have filled it

out and mailed or faxed it to the OSC, you have

filed your claims with the agency.

WHEN MUST I FILE A CHARGE?

It is best to file a charge as soon as possible after

you think you have been discriminated against, even

if you are unsure if you have a valid claim. You are

required by law to file a charge

within 180 days of the

date the employer discriminated against you. But if

more than 180 days have passed, do not give up.

Call the OSC and explain what happened.

Sometimes you may have a good excuse for being

late, such as for circumstances beyond your control,

and the OSC may still be able to help. Remember

to call the OSC as soon as possible.

IF I CALL THE OSC, WILL MY EMPLOYER

FIND OUT THAT I CALLED?

The staff person you talk to at the OSC may ask

you if the OSC may call the employer you are

complaining about. But if you ask the OSC not to

use your name, the attorney will not tell the

employer that you called the OSC.

When you call, an OSC staff person will ask you

questions about why you think you have been

treated unfairly. The staff person also may give you

a phone number for another agency if he or she

does not think the OSC can help you. Other

government agencies protect workers from

discrimination based on sex, age, race, religion, and

disability. Other laws also protect workers from

unsafe workplaces, unfair labor practices, and wage

and hour violations.

If the OSC staff person thinks that OSC can help

you, he or she may ask you if you want to file a

charge. You will be asked to provide your name on

the charge form. However, if you still do not want

to provide your name, OSC may still be able to open

an investigation based on the information that you

provided.

WHAT IF I AM AFRAID OF FILING A CHARGE

AGAINST MY EMPLOYER?

You may be worried that if you file a charge your

employer will fire you and you will have a hard time

finding another job. But if you file a charge, the law

protects you from being fired or retaliated against in

other ways because of it. You should discuss your

concerns with the OSC staff person who helps you.

Many community-based agencies, legal services

organizations, and worker centers also help people

with employment problems. If there is one near

you, call or visit to see if you can get help, especially

if you have reason to believe the employer might

take some other negative action against you.

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Filing an Employment Discrimination Charge Packet PAGE 12 Instructions for Filling Out the Charge Form

Instructions for Filling Out

the Charge Form

Following these instructions are two forms:

1. an OSC charge form, and

2. an Office of Chief Administrative Hearing Officer

(OCAHO) questionnaire/complaint form.

You first need to file the charge form with the

OSC so that it can investigate your case. Once it has

finished the investigation, you might also need to fill

out the second form called “Questionnaire/

Complaint Regarding Unfair Immigration-Related

Employment Practices,” depending on the OSC’s

findings. This will be discussed in the next section.

HOW DO I FILL OUT THE CHARGE FORM?

It is best to use the OSC Charge Form that came

with this packet to file a charge against an employer.

The form asks for all the information the OSC

needs to investigate your case. It is available in

English, Spanish, Chinese and Vietnamese. The

following instructions are for the numbered items

on the charge form. When you fill it out, type or

print neatly using an ink pen rather than a pencil.

NUMBER 1:

If you are personally filing a charge, you are the

“Charging Party.” Write your name, telephone

number, and address in this space. If you do not

have a telephone, write down a phone number

belonging to someone who will take messages for

you. You are also the “Injured Party.” Print “same”

in the space for the injured party’s name.

You can also have a representative or an

organization, such as a worker center, immigrant

rights organization or union, file the charge on your

behalf. If you have authorized an organization or

other representative to file the charge for you, that

organization would be listed as the “Charging

Party.” You would then complete the “Injured

Party” section of the form.

NUMBER 2:

Print the name, telephone number, and address of

the employer you believe has discriminated against

you.

NUMBER 3:

If the employer you are complaining about has

fewer than 15 workers, but more than 3 workers,

check the first box. If the employer has 15 or more

workers, check the second box. If you do not know

how many people work for the employer, check the

box beside the words “Unable to estimate number

of employees.”

NUMBER 4:

If you think the employer you named under

Number 2 has treated you unfairly because you

“look or sound foreign” or because of your

nationality, check the box on the charge form next

to “National Origin Discrimination.”

If you think you were treated unfairly because you

are not a U.S. citizen or a permanent resident, check

the box next to “Citizenship Status Discrimination.”

Or if the employer told you that you have to show

an USCIS issued document, check this box.

If the employer has threatened to fire you, or has

already fired you, for filing a charge with the OSC,

check the box next to the word “Retaliation.” Or if

the employer is harassing you because you stood up

for your right to be free from immigration-related

discrimination by complaining about the employer’s

discriminatory treatment of you, check this box.

If the employer would not accept your legal work

papers or if the employer told you to show USCIS

documents, check the box next to “Document

Abuse” on the charge form.

It is often the case that the employer may have

treated you unfairly in more than one way. For this

reason, it is best to check each box on the charge

form that applies in your case.

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Filing an Employment Discrimination Charge Packet PAGE 13 Instructions for Filling Out the Charge Form

NUMBER 5:

If you are a United States citizen or national,

check the first box. Then go to Number 6. (A

national of the U.S. is a person born in the outlying

possessions of the U.S., such as in American

Samoa.)

If you are not a U.S. citizen, but you have lawful

work authorization documents from the USCIS,

check the second box “Alien authorized to work in

the United States.” If you check this box, you must

answer the other items in Number 5.

Write down your alien registration number (“A”

number). Your “A” number is the number on your

USCIS document that begins with the letter “A.”

Also write the day, month, and year you were born

in the space provided.

If you are a lawful permanent resident (if you have

a “green card”), check the box beside the words “Is

lawfully admitted for permanent residence.” In the

blank space write the date you were granted

permanent residency (if you know the date).

If you applied for amnesty or legalization under

the IRCA and have a temporary resident card, check

the second box.

If you are a refugee, check the box next to the

words “Is admitted as refugee.” If you were granted

political asylum, check the box next to “Has been

granted asylum.”

If you have a work authorization from the USCIS,

check the last box.

On the right-hand side of the form, check the first

box next to the words “Has applied for

naturalization” if you have applied to become a U.S.

citizen. Write the date you applied to become a

citizen on the line next to “Date of application.” If

you have not applied to become a U.S. citizen, check

the second box next to “Has not applied for

naturalization.”

NUMBER 6:

Write the date that the employer treated you

unfairly. This is the date the employer fired you,

requested more or specific documents or rejected

your documents, or the latest date that you were

refused a job.

NUMBER 7:

Write the address of the place where you were

treated unfairly. This will probably be the

employer’s business address.

NUMBER 8:

If you have already filed an employment

discrimination charge with the EEOC or another

government agency against the employer you listed

in Number 2 and Number 7, check the box next to

“Yes.” Then write down the name and address of

the government agency, the date you filed the

charge, and the file number of your case with the

other agency.

If you have not filed an employment

discrimination charge with any other government

agency, check the box next to “No.”

NUMBER 9:

On these lines, you must explain to the OSC why

you think you were treated unfairly. Do not just

write, “I was treated badly.” Instead, write down

specifically what the employer did that you think is

discrimination. Include as much information as

possible such as the date, time, location, names of

individuals responsible for the discrimination, their

title or position, names of witnesses, and document

what exactly the employer, or employer’s

representative said and did. For example, if you

think the employer treated you differently from

other workers because the employer thinks you are a

foreigner, you must write your reasons for thinking

this and describe how you were treated. If the

employer said that you had to be a U.S. citizen to get

a job, write this. If you think the employer would

not accept your legal work papers, write this. If the

employer told you that it could not verify that you

are authorized to work, write this. If the employer

said you had to show a USCIS document, write this.

If an employer told you that you could not be hired

because there is an expiration date on your work

authorization documents, write this in Number 9. If

the employer told you that you could not be hired

because your Social Security number is not good,

write this.

Having as much information as possible enables

the OSC to do a good job investigating your case.

Try to write as much as you can about why you

think you were treated unfairly. If someone saw you

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Filing an Employment Discrimination Charge Packet PAGE 14 Instructions for Filling Out the Charge Form

being treated unfairly, write the name and telephone

number of this witness on the lines in Number 9.

If you need more room to write down exactly

what happened, you can add pages to the form and

indicate on the form under No. 9 “see attachment.”

NUMBER 10:

If you are filing the OSC charge on your own, sign

your name on the first line and print today’s date.

By signing the form, you are swearing that

everything you have written on the form is true.

You are also giving the OSC permission to tell the

employer your name during the investigation. If you

do not want the OSC to tell the employer your

name, call the OSC before you sign the form.

Discuss the case with an OSC attorney and ask for

advice.

WHAT IF I DO NOT HAVE ALL THE

INFORMATION THE CHARGE FORM ASKS

FOR?

The most important thing to do is file the form

with the OSC within 180 days of the date you were

discriminated against. If you do not have all the

information the form asks for, give as much

information as you can and file the form on time.

If you do not answer all the questions on the

form, the OSC will contact you and ask you for

more information. You must provide all the

information the OSC asks for within 45 days. If you

have trouble getting the information, call the OSC

for help.

WHERE DO I SEND MY CHARGE FORM?

•

After completing and signing the charge form,

make a copy for your records. Charges of

discrimination should be faxed to OSC at 1-202-

616-5509. You can also mail your charge form to:

U.S. Department of Justice

Civil Rights Division

Office of Special Counsel for Immigration-Related

Unfair Employment Practices

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Or fax to: 202-616-5509

Remember, the form must be mailed or faxed

within 180 days of the date you were treated

unfairly.

Remember to keep a copy of the filled-out charge

form for yourself.

CAN I CALL THE OSC FOR HELP FILLING

OUT THE CHARGE FORM?

Yes. Call 800-255-7688 for help filling your charge

form. OSC also has a telephone number for the

hearing impaired: 800-237-2515.

Many of the people who work at the OSC speak

several languages including Spanish. If you do not

speak English or Spanish, you can still call the OSC

am tell the person who answers what language you

speak. The OSC will get a translator to speak with

you. The OSC will not charge you any money. The

hotline and assistance are free.

WHAT IF I MOVE AFTER I FILE MY CHARGE?

If you move or change your phone number, make

sure you call or write the OSC and give your new

address or telephone number. It is very important to

let the OSC know immediately if you move. You

can lose your case if you do not let the OSC know

how to contact you.

WHAT HAPPENS DURING THE OSC’s

INVESTIGATION?

The OSC attorney will try to find out if your

employer illegally discriminated against you. First the

OSC will notify you that it received your charge

form. Within 10 days after getting your charge form,

the OSC will also send a notice to the employer

telling the employer about the investigation.

The OSC attorney will request information and

documents from the employer. Meanwhile, you

should gather as much evidence as you can to

support your case. Try to find witnesses who can

tell the OSC what really happened.

The OSC attorney will also ask you questions. He

or she may visit you in person or talk to you over

the telephone. If you are able to find an advocate or

an attorney to help you, that person can also talk to

the OSC investigator and explain your side of the

story.

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Filing an Employment Discrimination Charge Packet PAGE 15 Instructions for Filling Out the Charge Form

Initially, the OSC has 120 days to investigate your

case. This period can be extended by an additional

90 days before the OSC must either dismiss your

charge or file a lawsuit on your behalf. If the OSC

decides that you were illegally discriminated against,

it will try to settle the case with the employer.

WHAT DOES IT MEAN TO “SETTLE

A CASE”?

If you and the employer agree to solve the

problem without going before a judge, this is called

a “bilateral resolution.” The employer may agree to

stop discriminating and give you a job. The

employer may also agree to pay you for lost wages

and educate its employees on the law. In most

cases, OSC will end its investigation following a

bilateral resolution.

If OSC determines that you were illegally

discriminated against, OSC may negotiate and enter

into a formal settlement agreement, which may

include some or all of the following terms: an

agreement by your employer to stop discriminating;

monetary penalties; reinstating you to your previous

position with or without backpay; and an agreement

to educate its staff members involved in hiring on

non-discriminatory practices. If the OSC decides

not to file a complaint with a judge, you must decide

whether you want to file a complaint on your own.

At the conclusion of the 120-day investigatory

period, you will receive a notice from the OSC that

it either is extending its investigation or has

completed the investigation and is dismissing your

charge (120-day letters). When you get that notice,

you and the OSC, if it has extended its investigation,

have 90 days to file a complaint with a judge. As

discussed below, you may want to find an attorney

to represent you if you decide to file your own

complaint.

WHAT DOES “FILE A COMPLAINT” MEAN?

A complaint initiates a lawsuit and tells a judge

why you think you were discriminated against. The

judge may have a hearing to decide if the employer

treated you unfairly. The hearing is very much like a

trial.

If the OSC files a complaint against the employer,

the OSC will not charge you any money, but OSC

will be representing the U.S. government, not the

Charging Party.

WHAT IF THE OSC DOES NOT FILE

A COMPLAINT?

After the conclusion of the initial 120-day

investigatory period, the OSC will send you a letter

if it decides not to file a complaint. The letter will

tell you that if you want to file your own complaint

before a judge, you must do so within 90 days after

you receive the letter.

DO I NEED A LAWYER TO FILE

A COMPLAINT?

You do not have to get a lawyer. You can

represent yourself before the judge, but it is better to

have a lawyer to represent you. Locate a legal aid

office or community organization that helps people

with immigration or employment problems. The

OSC may be able to give you the name and

telephone number of an office near you that you can

call for help. If you cannot find a lawyer to help you,

but you think that the employer acted illegally, you

must still file a complaint within 90 days of getting

the 120- day letter from the OSC if you want to

continue with your case.

If you are thinking about filing a complaint with

the judge on your own,

be careful. If the judge later

decides that the employer did not discriminate

against you, the judge could order you to pay for the

attorney your employer hired. This rarely happens.

But before you file the complaint on your own, call

OSC to ask for the name of a legal aid office or

community organization where you can get help.

If you decide to file a complaint, fill out the

complaint form included in this packet called

“Questionnaire/Complaint Regarding Unfair

Immigration-Related Employment Practices.” Type

or print neatly and use an ink pen. Make sure you

answer all the questions and sign and date the form.

Make a copy of the filled-out form and keep it in a

safe place.

The judge must receive the complaint form within

90 days after you received the 120-day letter from

the OSC telling you the OSC is continuing its

investigation or it not going to file a complaint. For

example, if you got such a letter from the OSC

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Filing an Employment Discrimination Charge Packet PAGE 16 Instructions for Filling Out the Charge Form

today, the judge would have to receive your

complaint within 89 days of today. Make sure you

allow plenty of time for the mail to get your

complaint form to the judge.

When you send your complaint form to the judge,

you must attach five copies of the

charge form you

filed with the OSC and five copies of the

120-day

letter

the OSC sent you. (If you do not have a copy

of the charge form you sent to the OSC, ask the

OSC attorney to give you a copy.) Send your

complaint and the attached copies by

certified mail

to this address:

United States Department of Justice

Executive Office of Immigration Review

Chief Administrative Hearing Officer

5107 Leesburg Pike, Suite 2519

Falls Church, VA 22041

This office will assign a judge to your case. The

judge will send you a notice that he or she will be

handling your case. The notice will have the judge’s

address. If you change

your address, it is very

important for you to let the judge know. Write or

call the judge’s office assigned to your case to

inform the judge of your new address and phone

number. If you need help contacting your judge, call

703-305-0864.

WHERE WILL THE HEARING BE HELD?

The hearing will be as close to where you worked

for the employer as possible. You will get a chance

to tell the judge what happened to you and why you

think you were discriminated against.

WHO WILL REPRESENT ME AT THE

HEARING?

If the OSC files a complaint against the employer,

the OSC attorney will represent the U.S.

government at the hearing. If you have your own

attorney, he or she should be at the hearing to

represent you.

If you have filed a complaint on your own and

don’t have an attorney to help you, then you will

have to represent yourself at the hearing.

AFTER A COMPLAINT IS FILED, DOES THE

CASE HAVE TO GO BEFORE A JUDGE?

In many cases, the case may be settled after the

complaint is filed. You may reach an agreement with

the employer and not have to have a hearing before

a judge. The settlement between you and the

employer could be for the money you did not get

paid, a job, or other things that will take care of the

problem.

If you are not able to settle the case, a date will be

set for a hearing with a judge. You will get a notice

telling you the time and place of the hearing.

WHAT IF THE JUDGE DECIDES THAT THE

EMPLOYER DISCRIMINATED?

If the judge decides that the employer

discriminated against you, the judge will order the

employer to stop discriminating. The judge may

order the employer to hire you, or give you back

your job. The judge can also fine the employer, but

the money goes to the U.S. government, not to you.

The judge may also order the employer to pay you

lost wages. But before doing this, the judge will want

to know whether you have been looking for a job

since you were fired or since the employer refused

to hire you. So it is important that you keep written

notes about your job search and a copy of all job

applications you submit. Keep notes about what

jobs you have been able to get. Keep a record of

how much money you earn at these jobs. These

notes and records will help the judge decide how

much money the employer should pay you.

WHAT IF THE JUDGE DECIDES THE

EMPLOYER DID NOT DISCRIMINATE?

If the judge decides that the employer did not

illegally discriminate against you, then nothing

happens to the employer. The judge can order you

to pay the employer’s attorney for the time the

attorney spent representing the employer, but only if

your lawsuit had no basis, and this hardly ever

happens.

If you believe the judge made a wrong decision,

you can appeal the decision to the federal circuit

court of appeals. You will probably need the help of

an attorney to file an appeal. You only have 60 days

to file an appeal. If you have any questions about

the instructions in this packet, call OSC at 1-800-

255-7688.