November 1, 2012 IER Technical Assistance Letter on document requests

U.S. Department of Justice
Civil Rights Division
Office 01 Special Counsellor Immigration-Related
Urifair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
NOV -1 2012
Via Email Aarons@infosolutionsteam.com
Aaron Shackelford
Information Solutions
326-A-1 N. Bloomington
Lowell, AR 72745
Dear Mr. Shackelford:
This letter is in response to your email received by the Office of Special Counsel for
Immigration Related Unfair Employment Practices (OSC) on August 24,2012. Your email
requests clarification on two issues. First, you would like clarification on whether it is
acceptable for an employer who is presented with an "invalid (fraudulent)" document to request
the employee to "provide a different document." Specifically, you express concern that not only
mayan employee presenting false documents commit a felony but that an employer asking to see
additional documents may lead the employee to commit another felony. In your email, you do
not describe the factors upon which you relied to conclude that the documents are fraudulent.
Second, your email requestsguidanceregardinga .. current[company]policy ... toimmediately
term [inate] anyone that presents fraudulent documents" and deem those individuals ineligible for
rehire.
As you may know, OSC enforces the anti-discrimination provision of the Immigration
and Nationality Act (INA), as amended, 8 U.S.C. § 1324b. The anti-discrimination provision
prohibits four types of unlawful conduct: (1) citizenship or immigration status discrimination; (2)
national origin discrimination; (3) unfair documentary practices during the employment
eligibility verification (Form 1-9) process ("document abuse"); and (4) retaliation for filing a
charge or asserting rights under the anti-discrimination provision. Although OSC cannot give
you an advisory opinion on any set of facts involving a particular individual or company, we are
pleased to provide some general guidelines regarding compliance with the anti-discrimination
provision of the INA.
Regarding your first question, an employer "may reject a document presented by an
employee if the document does not reasonably appear to be genuine or to relate to the person
presenting it." USCIS - Is This Document Acceptable?,
http://www.uscis.gov/portallsite/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a1?vgnexto
id=d6c08318c9c6431 OV gnVCM1 00000082ca60aRCRD&vgnextchannel=5c 1f8318c9c6431 OV g
nVCM100000082ca60aRCRD (last visited Sep. 14,2012) (emphasis added); See also Form M
274 at 28 (stating "documents that are clearly inconsistent may be rejected."). To the extent an
employer knows a document to be fraudulent but nevertheless accepts it, it may be deemed to

have violated 8 U.S.C. § 1324a, which is enforced by U.S. Immigration and Customs
Enforcement. 	If an employer rejects a document that does not reasonably appear to be genuine
or to relate to the employee, an employer may ask the employee if he or she is able to provide
other documents from the Lists of Acceptable Documents on Form 1-9. Form M-274 at 42. To
avoid violating the anti-discrimination provision, employers should scrutinize documents in the
same manner for all similarly-situated employees.
Regarding your second question, whether barring an employee that the employer
believes presented fraudulent documents from rehire is legally permissible depends on the
circumstances of the case. It is unlawful for an employer with knowledge that an individual is
not work-authorized to employ the individual. 8 U.S.C. § 1324a(a)(1); See also Fact Sheet: Form
1-9 Inspection Overview, http://www.ice.gov/news/library/factsheets/i9-inspection.htm (last
visited Sep. 14,2012) (stating "Employers determined to have knowingly hired or continued to
employ unauthorized workers ... will be required to cease the unlawful activity, may be fined,
and in certain situations may be criminally prosecuted.") (emphasis added). However, if work
authorized employees' genuine documents are erroneously rejected based on a belief that those
documents are fraudulent, that employee may choose to file a charge under the anti
discrimination provision. In such instances, OSC's investigation focuses on the employer's
intent.
You also inquire about a company policy that deems individuals that presented false
documents ineligible for rehire. 	If an employer rejects a presently work-authorized individual
from employment based on the individual's prior undocumented status, that employee might
choose to file a charge under the anti-discrimination provision. OSC's investigation in such
circumstances would focus on whether an employer's "dishonesty policy" is consistently applied
to employees who make false representations on their applications for employment or other
forms without regard to citizenship status or perceived national origin, and whether the
employer's claimed reason for termination is in fact a pretext for citizenship status
discrimination. See, e.g., Simon v. Ingram Micro Inc., 9 OCAHO no. 1088 at 13-14 (2003)
(discussing cases holding that termination for misrepresentations or dishonesty is a legitimate
nondiscriminatory reason). See also Aguirre v. KDI American Products, Inc., 6 OCAHO no. 882
(1996) (refusing to hire or rehire someone who has presented false employment eligibility
documents or made a false statement on the application and 1-9 form not likely to violate the
anti-discrimination provision if honesty policy applied consistently). Accordingly, consistent
application of a dishonesty policy would not constitute a per se violation of the anti
discrimination provision.
We hope this information has been helpful, and all of your concerns have been addressed.
SeemaNanda
Deputy Special Counsel
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