August 13, 2013 IER Technical Assistance Letter on requesting documents from contractors

U.S. 1)epartment of Justice
Civil Rights Division
Office o/Speclal Counselfor Immigration-Related
Unj'air Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
August 13,2013
Via Email (pcronican@greenhall.com)
Patrick Cronican
GREEN & HALL, APC
2999 Douglas Boulevard, Suite 220
Roseville, CA 95661-4216
Dear Mr. Cronican:
This is in response to your email of June 10, 2013 to the Office of Special
Counsel for Immigration-Related Unfair Employment Practices ("OSC"). We apologize
for the delay in responding to your request. We understand that you represent a business
that has been retained as a subcontractor on a construction proj ect. You state that "the
general contractor on the project is requiring that all employees of [your] client present
the original documents (Le. passport, DL, etc.) that were provided to [your] client during
the 1-9 verification process before they are allowed to commence their work on the
project."
Specifically, you pose the following questions: (1) "whether the general
contractor's practice of requiring [your] client's employees to produce their original
documents evidencing authorization to work (that were previously presented and attested
to by [your] client) is permitted"; and (2) "if this practice is not allowed, what remedies
are available to [your] client?"
Please note that OSC cannot provide an advisory opinion on any set of facts
involving a particular individual or entity. However, we can provide some general
guidelines regarding employer compliance with the anti-discrimination provision of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, enforced by OSC, and
employer actions under that provision. The anti-discrimination provision prohibits four
types of employment-related discrimination: citizenship or immigration status
discrimination; national origin discrimination; unfair documentary practices during the
employment eligibility verification (1-9 and E-Verify) process ("document abuse"); and
retaliation for filing a charge, assisting in an investigation or asserting rights under the
anti-discrimination provision. 8 U.S.C. § 1324b. For more information on OSC, please
visit our website at: http://www.iustice.gov/crt/about/osc/.
As you may know, an employer must complete the Form 1-9 each time it hires any
person to perform labor or services in the United States in return for wages or other
remuneration. See 8 U.S.C. § 1324a(a)(1)(B); 8 C.F.R. §§ 274a.2(b)(1)(i) and (Ii).
Employers must have new hires complete Section 1 of the Form 1-9 at the time of hire

and must then review documentation presented by the employee within three days of hire
in order to complete Section 2 of the Form 1-9 . See Form 1-9 Instructions, page 3. If a
general contractor were to ask an employee of a subcontractor to produce such
documents a second time, this could present a number of problems. Given the passage of
time that likely would have transpired from when an employee was initially hired by a
subcontractor, such as your client, to when the general contractor is requesting to see the
employee' s 1-9 documentation, the employee may no longer have the documents
originally presented for a number of reasons not limited to but including: (1) the
document(s) has expired and the employee now has a newer version of the originally
presented document(s); (2) the employee has a different document due to adjustment of
immigration status (i.e., from a lawful permanent resident to a U.S. citizen) and has
forfeited his or her originally presented document; or (3) the document has been lost,
stolen or misplaced. To the extent such individuals are barred from employment, they
may perceive that the general contractor and/or subcontractor has discriminated against
them based on their citizenship or immigration status. Because the proposed practice
relates to the original 1-9 verification process, such employees might also allege
discriminatory 1-9 practices in violation of the anti -discrimination provision.
Regarding your inquiry about remedies available to the subcontractor, this does
not raise issues within our authority. If you have further questions, please call OSC's
toll-free hotline (1-800-255-8155) or visit OSC' s website.
Si :&:- ~
,/
Seema Nanda
Deputy Special Counsel