August 2, 2011 IER Technical Assistance Letter on E-Verify use

U.S. Department of Justice
Civil Rights Division 	.
Office o/Special Counsel/or Immigration-Related
Un/air Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
AUG - 2 2011
David C. Fowler
Vice President, Product Strategy
TALX Corporation
11432 Lackland Road
St. Louis, MO 63146
Dear Mr. Fowler,
In your June 23,2011 email, you ask whether it is discriminatory for employers to retain
copies of the 1-9 documents E-Verify requires employers to copy when the photo matching tool
is activated, but not retain copies of other 1-9 documents. 	.
As you know, the Office of Special Counsel for Immigration-Related Unfair Employment
Practices (OSC) enforces the anti-discrimination provision ofthe Immigration and Nationality
Act(INA), codified at 8 U.S.C. §1324b. OSC cannot provide an advisory opinion on any
particular instance of alleged discrimination or on any set of facts involving a particular
individual or entity. We can, however, provide some general guidelines regarding employer
compliance with the INA's anti-discrimination provision. The INA's 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 (Form 1-9) process (i.e., "document abuse"); and retaliation
for filing a charge, assisting in an investigation, or asserting rights under the anti-discrimination
provision. For more information about OSC, you may visit our website at:
www.justice.gov/crt/about/osc.
As you may know, employers have the option as to whether or not to photocopy
documents reviewed for 1-9 purposes. See U.S. Citizenship and Immigration Service (USCIS)
Handbook for Employers Instructions for Completing Form 1-9 (M-274)(Rev. 1101111), at 40.
Furthermore, for employers that use E-Verify, "[i]fthe employee presents a U.S. Passport,
Passport Card, a Permanent Resident Card (Form 1-551) or an Employment Authorization
Document (Form 1-766) you must obtain a copy of it and retain it with Form 1-9." E-Verify User
Manual for Employers, May 2011, at 14. Thus, in order to participate in E-Verify, employers
must sign a Memorandum of Agreement with E-Verify whereby they agree to photocopy the
above documents, which presently activate E-Verify's photo-matching tool.
Document abuse occurs when an 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, with the intent to discriminate on the

basis of national origin or citizenship status. See 8 U.S.C. § 1324b(a)(6). With regard to the 1-9
process, action taken by an employer for reasons other than intent to discriminate do not
constitute an unfair employment practice within the meaning ofthe anti-discrimination provision
of the INA. To'the extent an employer that participates in E-Verify chooses only to copy the 1-9
documents of employees who present documents subject to the photo-matching tool, this would
appear to be selective photocopying based on a contractual requirement and not based on
citizenship status or national origin.
Please note, however, that requiring an employee to present a U.S. Passport, Passport
Card, Permanent Resident Card or Employment Authorization Document (EAD, Form 1-766) in
order to trigger the E-Verify photo-matching feature, could constitute document abuse in
violation of the anti-discrimination provision of the INA.
We hope you find this information helpful, and thank you for contacting OSC.
Sincerely,
gtL-SeemaNanda
Acting Deputy Special Counsel
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