September 25, 2013 IER Technical Assistance Letter on verifying employment authorization of asylees and refugees

U.S. Department of Justice
", 	Civil Rights Division
Office of Special Counselfor Immigration-Related
Urifalr Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
SEP 2 5 2013
BY EMAIL ANDFIRSTCLASSMAIL(Eileen.scofield@alston.com)
Eileen M.G. Scofield, Esq.
Alston & Bird
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Dear Ms. Scofield:
Thank you for your letter, dated August 22, 2013, to the Office of Special Counsel for
Immigration-Related Unfair Employment Practices (OSC). In your letter, you seek guidance
from OSC concerning the steps that employers should take when an asylee or refugee worker
presents an Employment Authorization Document or Form 1-766 ("EAD") for initial 1-9
purposes, and the EAD subsequently expires. Specifically, you ask whether OSC will view as
discriminatory, an employer's decision to follow the Form 1-9 instructions and reverify the EADs
of asylee or refugee workers when their EADs expire, in light of the fact that "asylees and
refugees have unrestricted work authorization." (citing to 8 C.F.R. § 274a.12(a) and Immigration
and Naturalization Service Memorandum on the Meaning of 8 C.F.R.a.12(a) as it Relates to
Refugee and Asylee Authorization for Employment, William Yates (March 10,2003)).
OSC is responsible for enforcing the anti-discrimination provision of the Immigration
and Nationality Act ("INA" or "the Act"), 8 U.S.C. § 1324b, which prohibits discrimination in
hiring, firing, or recruitment or referral for a fee that is based 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. OSC cannot provide an advisory opinion on
any particular instance of alleged discrimination, or on any set of facts involving a particular
individual or entity. However, we can provide some general guidelines regarding employer
compliance with the INA's anti-discrimination provision.
The document abuse provision of the INA prohibits an employer from requesting more or
different documents or rejecting valid employment eligibility verification documents with the
intent to discriminate on the basis of national origin or citizenship status. 8 U.S.C. § 1324b(a)(6).
Document abuse can also occur during the reverification process. See Townsend Culinary, Inc., 8
OCAHO no. 1032 (1999).

When completing the Form 1-9 a worker must select a box in Section 1 indicating his or
her status (citizen, noncitizen national, lawful permanent resident, alien authorized to work).
The selection applicable to refugees and asylees-alien authorized to work-has a field that
requests "expiration date, if applicable." The Form 1-9 instructions provide that refugees or
asylees may write " N/A" in the space provided for the expiration date in Section 1. Form 1-9
Instructions, pp.2, 5.
After employees complete Section 1, they must present documents evidencing identity
and employment eligibility in order for the employer to complete Section 2 of the Form 1-9.
USCIS guidance provides that refugee and asylee workers are not required to present an EAD for
Section 2 in order to complete the Form 1-9. See U.S. Citizenship and Immigration Service
Handbook for Employers, M-274, p. 13. Rather, refugee and asylee workers may choose to
present other documents, such as a driver's license (List B) and unrestricted Social Security card
(List C), to satisfy the Form 1-9 requirements. Id . The Form 1-9 instructions further provide that
reverification of a worker's employment authorization does not apply for refugees and asylees
"unless they chose to present evidence of employment authorization in Section 2 that contains an
expiration date and requires reverification, such as Form 1-766, Employment Authorization
Document." Form 1-9 Instructions, p.3. 	Thus, an employer that reverifies the employment
authorization of an asylee or refugee that originally presented an EAD upon the EAD's
expiration is following USCIS guidance. OSC would therefore be unlikely to find a violation of
the anti-discrimination provision unless the employer somehow acted in a discriminatory manner
based on national origin or citizenship status.
In your letter you also raise a concern related to refugee and asylee workers who are
unable to present a new unexpired EAD by the date of expiration of their originally presented
EAD. For reverification, an employee may present unexpired documentation from either List A
or List C showing he or she is still authorized to work. Employers cannot require the employee
to present a List A document. Form 1-9 Instructions, p. 5. Thus, a refugee or asylee that
originally presented an EAD could, for instance, present an unrestricted Social Security card at
reverification. Furthermore, the receipt rule would allow a worker to present a receipt for a lost,
stolen or misplaced document for reverification purposes. Form 1-9 Instructions, p. 4. To the
extent an employer requires an employee to present a specific document, such as an unexpired
EAD, for reverification purposes, it may violate the anti-discrimination provision's prohibition
against document abuse.
We thank you for raising these imp0l1ant issues and hope that this information is helpful.
If you have any questions regarding this matter, please do not hesitate to contact us at 1-800-255
7688 (toll free).
Seema Nanda
Deputy Special Counsel