September 30, 2013 IER Technical Assistance Letter on sharing Forms I-9

U.S. Department of Justice
Civil Rights Division
Office of Special Counselfor Immigration-Related
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
September 30,2013
BY EMAIL (bgibson@fragomen.com)
BOlU1ie Gibson
Fragomen, Del Ray, Bernsen and Loewry, LLP
3003 N. Central Ave. Suite 1200
Phoenix, AZ 85012
Dear Ms. Gibson:
This is in response to your letter dated September 17, 2013. Your letter expands upon the
limited question presented earlier this year to OSC by Diana Forbush, resulting in OSC's
Technical Assistance letter dated May 30,2013 (Forbush letter), available at
http://www.justice.gov/crtiabout/osc/pdf/publications/TAletters/FY2013/166.pdf.
In your letter, you seek clarification as to OSC's authority to enforce 8 U.S.C. § 1324a(b)(5), and
question that provision's applicability to entities other than the federal government in connection
with its enforcement role. 1 You further explain the reasons why private payroll card vendors rely
on Form 1-9 infofl11ation to comply with banking laws and regulations. Based on your
explariation, we understand that vendors using an electronic payroll card system will only view
employer FornlS 1-9 in limited instances (such as an audit), and primarily rely on "employer
representations to the bank that the employer has valid Forms 1-9 on file for all the employees
enrolling in the payroll card program."
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 ofthe 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 about
OSC, please visit our website at: http://www.justice.gov/crt/about/osc.
1 We note that you do not mention related provisions, such as 8 U.S.C. § 1324a(d)(2)(C), entitled "Limited use of
system,." This provision of law states, "Any personal information utilized by the system may not be made available
to Govel11ment agencies, employers, and other persons except to the extent necessary to verify that an individual is
not an unauthorized alien." (Emphasis added.)

We use this opportunity to clarify that OSC does not enforce 8 U.S.c. § 1324a(b)(5), or
its related provision, 8 U.s.c. § 1324a(d)(2)(C). 	Furthennore, we carU10t comment on whether
the practice in question complies with the Bank Secrecy Act or other banking regulations
mentioned in your letter.
However , as OSC noted in the Forbush letter, there are practical considerations as to why
providing Fonns 1-9 to other entities (which may occur in limited instances in the context at issue
here) may be problematic and could result in possible 1324b violations, such as if a third party
asks an employer to request additional or different documents based on the third pariy's review
ofFonns 1-9. Additionally, there may be issues in relying on potentially stale or inconect
information recorded on the Fonn 1-9 if an employer (or third pariy) relies on identity
infonnation for a particular employee at a later date, by which time the employee's address, legal
name , or other identifying infonnation may have changed.
We hope this information is helpful. Thank you for contacting OSc.
Seema Nanda
Deputy Special Counsel
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