December 1, 2011 IER Technical Assistance Letter on document requests

U.S. Department of Justice
Civil Rights Division
Office a/Special Counsel/or Jmmlgration~Related
Urifatr Employment Practices ~ NYA
950 Pennsylvania Ave, NW
Washlnglon. DC 20530
Main (202) 616-5594
Fax (202) 616-5509
DEC 0 1 2011
William B. Cowen, Esq.
Solicitor
National Labor Relations Board
Suite 11800
1099 14th Street, NW
Washington, DC 20570
Dear Mr. Cowen:
Thank you for contacting the Office of Special Counsel for Immigration-Related Unfair
Employment Practices (OSC). This letter is in response to your September 19,2011, email in
which you asked the following questions:
1) 	Assuming that an employee submitted facially legitimate documents upon initial hiring,
under what conditions (other than the impending expiration of the original documents) may
an employer later lawfully re-verify or request additional information or documentation from
an employee?
2) 	Is it llnlawful for an employer to re-verify or request additional information or
documentation without cause even if it has no discriminatory motive?
3) 	Is an employer entitled to inquire further ifit has "reasonable" or "good" cause to believe the
employee may not be authorized to work? What would constitute sufficient cause?
OSC is responsible for enforcing the anti-discrimination provision of the Immigration
and Nationality Act (INA), 8 U.S.C. § 1324b, which prohibits discrimination in hiring, firing, or
recruitment or referral for a fee that is based 011 an individual's national origin or citizenship
status. The statute also prohibits unfair documentary practices during the employment eligibility
verification (Form 1-9) process on the basis of citizenship status or national origin (document
abuse), and retaliation or intimidation. This office cannot give you an advisory opinion on any
set of facts. However, we can provide general information regarding compliance with the anti
discrimination provision of the INA.
As you may know, an employer is required to complete an I-9 Form for each new hire
within three days of hire. 8 C.F.R. § 274a.2 (b) (ii) (2011). When reviewing documents
presented for 1-9 purposes an employer's obligation is to accept either one List A document
(chosen by the employee) or a combination of one List B document and one List C document
(chosen by the employee) as long as the document or documents reasonably appear to be genuine

and to relate to the employee. USCIS's Handbookfor Employers, Instructions for Completing the
Form 1-9 (Form M-274, Rev.06/01/11) at pp. 4-5.
With respect to your first question, there may be circumstances in which an employer
may legitimately reverify or request work authorization documentation from an employee after
the initial hiring process. For instance, as you note, an employer is required to re-verify an
employee's work authorization at the time of expiration. 8 C.F.R. § 274a.2 (b) (vii) (2011). We
note, however, that permanent resident cards (commonly referred to as "green cards") should
never be re-verified, nor should U.S. citizens be re-verified. An employer that is re-verifying
employment authorization must not request specific documents or combination of documents,
but must allow employees to present their choice of documents. When re-verifYing employees
specifically because their work authorization has expired, employees need only present a List A
or List C document of their choice; List B documents (identity documents such as driver's
licenses), should never be re-verified. USCIS's Handbookfor Employers, Instructionsfor
Completing the Form 1-9 (Form M-274, Rev.06101l11) at p. 9. Finally, an employer may re
verify employees' documents when it discovers, during the course of conducting an audit of all 1
9 forms in a non-discriminatory manner, that the 1-9 forms or accompanying documents for some
employees are missing or incomplete. See United States v. Ojiel, 7 OCAHO 984, 986 (1998)
(finding that the government has a considerable interest in encouraging employers to correct
mistakes on the 1-9 form, and that employers may correct paperwork mistakes at or before
government inspection).
If an employer receives notice from Immigration and Customs Enforcement (ICE) that
certain documents utilized by employees during the 1-9 process are suspect, or that certain
employees' 1-9 forms were not properly completed, the employer may request additional
documentation from those employees pursuant to ICE's instructions. 	See
http://www.ice.gov/sevis/faqs/information_employers_nonimmigrant_students.htm. OSC has
recently issued guidance for employers on responding to a worksite enforcement audit, which
can be located at http://www.justice.gov/crtlabout/osc/pdf/publications/worksite_enforcement.
Other circumstances may also exist for an employer to request additional documentation from an
employee. See two previously issued technical assistance letters, dated October 14, 2011, and
October 26, 2011, attached, discussing this issue. In all circumstances, OSC looks at the context
in which the employer made the request, including determining whether there is evidence that
the request was made for a discriminatory reason on the basis of national origin or citizenship
status.
With respect to your second question, OSC recommends that an employer exercise
caution to ensure that it only re-verifies employees' documents when it has a proper basis for
doing so. An employer that re-verifies or requests additional work authorization documentation
from certain employees and not others, without a valid basis, may be viewed as discriminating
on the basis of citizenship or immigration status or national origin in the employment eligibility
verification process. To the extent the employer has a proper basis for the re-verification, an
employer must treat all employees the same in the employment eligibility re-verification process,
regardless of their citizenship or immigration status, or their national origin in order to avoid
discrimination under the anti-discrimination provision of the INA. This includes providing
employees with the same timeframes for responding to similar document requests.
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With respect to your third question, employers should also exercise caution in
determining what information constitutes "reasonable" or " good cause" to believe an employee
is not authorized to work. Attached please find two previously issued technical assistance letters,
dated October 14 , 20 11 , and October 26, 2011 , di scussing this issue.
We hope the information provided above is helpful. If you require any further
information, pl ease visit OSC 's website at http://www.justice.gov/crt/about/osc/ or call our
e mpl oyer hotline at 1-800-255-8155.
Sincerely,
SeemaNanda
Acting Deputy Special Counsel
E ncl osures
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