April 21, 2010 IER Technical Assistance Letter on E-Verify procedures

U.S. Department of Justice
Civil Rights Division
OjJice of Special Counsel for Immigration Related
Unfair Employment Practices - NYA
950 Pennsylvania Avenue, NW
Washington, DC 20530
APR 2 1 2010
Sent by First Class Mail and Electronic Mail (Jrm@e'(jl~law.com)
J ang 1m, Esquire
Epstein Becker Green
One Califomia Street
26th Floor
San Francisco, CA 94111
Re: Request for Guidance on E-VerifyTentative Nonconfinnations
DearMr. 1m:
Thank you for contacting the Office of Special Counsel for Immigration-Related Unfair
Employment Practices ("OSC"). In your email ofMarch 29,2010, you ask whether an
employee' s failure to take action upon receipt of an E-Verify Tentative N onconfirmation
("TNC") by contesting or not contesting and signing the TNC notice is a valid basis for
tenninating employment.
This office CaIU10t give you an advisory opinion on any set of facts involving a particular
. individual or company. However, we can provide some general guidelines regarding compliance
with the anti-discrimination provision ofthe Immigration and Nationality Act ("INA").
As you lmow, OSC enforces the anti-discrimination provision ofthe INA The anti
discrimination provision prohibits four types ofunlawful conduct: (1) citizenship or immigration
status discrimination with respect to hiring, firing, and recmitment or referral for afee; (2)
national origin discrimination with respect to hiring, firing, and recmitment or referral for afee;
(3) discriminatory documentary practices during the employment eligibility verification (Fonn 1
9) process ("document abuse"); and (4) retaliation for filing a charge or asserting rights under the
anti-discrimination provision. 	'
Your email seeks clarification about an employer's obligations with respect to an
employee who fails to take action following receipt of a TNC notice from the U.S. Department of
Homeland Security's ("DHS") electronic employment eligibility verification program ("E
Verify"). As a general matter, the E-Verify Memorandum ofUnderstanding lays out an
employer's responsibilities for handling a TNC response. E-Verify MOU, Art. ILC; Art. III.

However, the MOU does not specify a time period within which an employee must take action
following receipt of a TNC. Nor do es the MOU specify a time period within which an employer
must initially provide the employee with the TNC notice. Por further assistance on' the specific
questions in your email, we recommendthat you contact E-Verify Customer Support at
1-888-464-4218.
To prevent a violation ofthe anti-discrimination provision in the use ofE-Verify, OSC
encourages employers to take steps to ensure that the verification process is implemented in a
non-discriminatory malmer. Accordingly, an employer should treat employees for whom it
receives a TNC consistently, regardless oftheir national origin or citizenship or immigration
status.
Por a list of OSC's best practices for employers using E-Verify as well as further
infonnation on the INA's anti-discrimination provision, please feel fi.·ee to consult OSC's website
at http://www.justice.gov/crt/osc/, or call OSC at 1-800-255-8155.
Sincerely,
111
Deputy Special Counsel