July 1, 2011 IER Technical Assistance Letter on Form I-9 documents

u.S. D.epartment of J ustice
Civil Rights Division
Office ojSpeciai Counselfor Immigralion-Rela/ed
Unjair Employment Prac/ices - NYA
950 Pennsylvanja Ave, NW
Washington, DC 20530
Main (202) 6]6-5594
Fax (202) 616-5509
David C. Fowler
. Vice President, Product Strategy 	JUL 01 2011
TALX Corporation
11432 Lac:kland Road
St. Louis, MO 63146
Dear Mr, Fowler,
This is in response to your email of May 25, 2011. .you ask whether it is' discriminatory
for an employer agent to shorten the list of available documents the employee may choose from
when completing Sectlon 2 of an electronic Form 1-9, once th~.workerhas selected his or her
. status in Section 1. You would like to know whethe~ limiting the document options to those 1h21t
correspond to a particular immigration status would fall under the description of document abuse
available on the USC1S 1-9 Central website: "specify[ing] certain documents over others based
on an employee's citizenship or immigration status."
.. _. As you know, the Office of Special Counsel for 1rnmignition-Related Unfair ElIlployment
PractiCes (OSC) enforces the anti-discrimination provision ofthe 1rnmigration and Nationality
Act (INA), codified at 8 US.C. §1324b. OSC cannot provide an advisory opinion on any. 	.
particular instance ofalleged discrimination or on any set offacts involving a particular
individual or entity. We can, however, provide some general guidelines regarding employer
compliance with the INNs anti-discrimination provision. Please also note that OSC does not
endorse, certify or otherwise approve a commercial produet asensuring compliance with 8
U.S.C. § 1324b. We cannot offer our view on whether the product, on its face and without
regard to the facts under which the product might be used, is inconsistent with an employer' s or
employee's rights and responsibilities under 8 US.C. § 1324b .
The INNs anti-discrimination provision prohibits four types of employment-related
discrimination: citizenship or irnmigration status discrimination; national origin dlscrimination;
unfair documentary practices during the emploYr:rJ.ent eligibility verification (Form 1-9) process
(i. e., lIdocument abusell ); and retaliation for filing a charge, assisting in an investigatíon, or
asserting rights under the anti -discrimination provision.
Document ab:use occurs whenan employer either demands that a worker produce more or
different documents than those identified in the Form 1-9 process, or refuses to honor documents
tendered that on their face reasonably appear to be genuine, based on national origin or
citizenship status. See 8 US.C. § 1324b(a)(6).
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ose cannot speculate on whether there are circumstances under which an employer,
relying on a program that limits the Lists of Acceptable Documents based on an employee's
citizenship or irnmigration status as identified in Section 1 ofthe Form 1-9, might be deemed to
have cornmitted document' abuse.
We do note, however, that to the extent that an employee either inadvertently or
mistakenly indicates an incorrect irnmigration status in Section 1 ofthe Form 1-9, the limitation
of documents in Section 2 may prevent that employee from presenting valid documentes)
acceptable for 1-9 purposes. Similarly, ifthe list excludes one or more documents that an
employee of a particular status may possess, the limitation of docurp.ents may also prevent that
employee from presenting his or her valid documentes) acceptable for 1-9 purposes.
We hope you findthis ~nformationhelpful, and.thank you for contacting OSC.
Sincerely,
.~1~
SeemaNanda
Acting Deputy Special Counsel
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