March 18, 2011 IER Technical Assistance Letter on Form I-9 software

OCR transcription for search; preserved printed pages are authoritative

DEPARTMENT O

<!-- PageHeader="U.S. Department of Justice Civil Rights Division" -->

Office of Special Counsel for Immigration-Related
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509

EMAIL (jacqueline.longnecker@evric.com)

Ms: Jacqueline Longnecker
President
Employment Verification Resources, Inc.
1575 DeLucchi Lane, Suite 207B
Reno, Nevada 89502

MAR 1 8 2011

Dear Ms Longnecker,

This letter responds to your email dated January 31, 2011. In your email you request
guidance from the Office of Special Counsel for Immigration-Related Unfair Employment
Practices (OSC) concerning your firm's electronic employment verification processing software.
First, you ask whether two series of questions asked in the software are acceptable. Specifically,
you indicate that employers using this software are instructed to:

1\. Enter the country of origin and classification that appears on an employee's EAD card in
order to help them complete the Form I-9 correctly. Related to this, you ask how an
employee is supposed to show evidence of re-registration.

2\. Answer a series of questions with respect to F-1 and J-1 visa holders, to help identify
whether the individual is on STEM or CAP GAP, and "what document(s) will be
required if the employee presents the initial requisite documents (i.e., EAD card for OPT
or possibly PP, I-94, I-20, IAP for J-1s)."

You also ask for clarification of the "3 day rule for processing that E-Verify has now pushed to
the 4th day in the new handbook."

As you may know, OSC is responsible for enforcing the anti-discrimination provision of
the INA, which prohibits national origin discrimination, citizenship status discrimination, unfair
documentary practices (document abuse) during the employment eligibility verification (Form
I-9) process, and retaliation. 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.

The U.S. Citizenship and Immigration Services (USCIS) within Department of Homeland
Security is responsible for establishing the rules and procedures governing the Form I-9 process
and E-Verify, the electronic employment eligibility system. In addition to the Form I-9 and its

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accompanying instructions, USCIS's Form M-274 Handbook for Employers Instructions for
Completing Form I-9 provides detailed information concerning proper completion of the Form
I-9. The Handbook for Employers is available at http://www.uscis.gov/files/form/m-274.pdf.

The first question appears to track employment authorization documents (EADs) issued
to individuals with Temporary Protected Status (TPS). The recently revised Handbook for
Employers (Rev. 1/05/11) includes a thorough discussion on EADs held by individuals with
TPS. The Handbook instructs employers to look at the category and expiration date on an EAD -
not the individual's country of origin - to determine if the EAD is subject to an automatic
extension. Handbook for Employers at 10-11. The Handbook warns employers not to request
evidence that an employee is a national of the TPS designated country. Id. Finally, the
Handbook directs an employer to reverify an employee's employment eligibility by the
expiration date of the TPS automatic extension. Id. An employee who presents current
documentation by the expiration of the automatic extension, such as a renewal EAD or
unrestricted Social Security card, has satisfied his or her Form I-9 obligations. Thus, employers
should not be advised to require additional documentation of an employee's country of origin or
his or her re-registration for TPS. To do so may be considered document abuse under the anti-
discrimination provision of the INA.

The second series of questions concerns documentation presented by temporary visa
holders, specifically, J-1 and F-1 visa holders. Here, we again refer you to the revised Handbook
for Employers, which contains detailed instructions on Form I-9 documentation for individuals
with J-1 and F-1 visas. See Handbook for Employers at 11-16.

To address your concerns about USCIS's guidance for the timeline to run an employee
through E-Verify, we suggest that you refer to the USCIS website's discussion of the timeline for
completing an I-9 form and running an E-Verify query, which can be found at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6dla/?vgnexto
id=c00b59cca6149210VgnVCM100000082ca60aRCRD&vgnextchannel=d4abfb41c8596210Vg
n VCM100000b92ca60aRCRD. You may also wish to contact E-Verify at 1-888-464-4218 with
your concerns. To prevent possible discrimination in violation of the anti-discrimination
provision of the INA, employers should comply with all E-Verify instructions, including the
instructions pertaining to the deadlines for submission of new employees' information to the
system, and they should treat all employees consistently throughout the E-Verify process,
regardless of their citizenship or immigration status or national origin.

Please feel free to contact us on our toll-free hotline (1-800-255-8155) or visit our
website www.justice.gov/crt/osc, if you have further questions regarding immigration-related
employment discrimination. We hope this information is helpful to you.

Sincerely,

Katherine A. Baldwin
Deputy Special Counsel