June 22, 2010 IER Technical Assistance Letter on seasonal employment

U.S. Department of Justice
Civil Rights Division
Offtce ofSpecial Counselfor Immigration Related
Unfair Employment Practices - NYA
950 Pennsylvania Av~nue, NW
Washington, DC 20530
Via E-Mail dfazio@wstb.com
l' 	:t 1 ...
Dan Fazio 	JLN 222010 	I
Director of Employer Services
WashingtoIi Farro Bureau
975 Carpenter Road NE .
Lacey, WA 98516
Dear Mr, Fazio:
Thank you for contacting the Offiée of Special Counsel for Irnmigration-Related Unfait
Employrnent Practices. This e-mail is in response to your letter, dated April16, 2010. 	In your
letter, you state that during a recent training of seasonal employers, an employer asked about its
employment eligibility verification obligations for seasonal workers who are laid off every year
in November and who return to work the following February. The employer does not consider
the employees to have been terminated each November and does not reverify the employees'
employrnent eligibility each February, unless an employee's employrnent authorization
document has expired. Accordingly, you ask "how long of a layoffcan a business impose on an
employee before the employer would be reqmred to complete anew 1-9 or 1-9 Section 3?"
The Office of Special Counsel for 1mmigration-Related Unfair Employrnent Practices
("OSC") enforces the anti-discrimination provision ofthe Immigration and Nationality Act
("INA").! OSC's inission is to protect work-authorized individual s from employrnent
discrimination based on citizenship status, national origin, over documentatio:q. in the
employrnent eligibility verification (Form 1-9) process (document abuse), or retaliation for filing
.a charge or asserting their rights under the anti-discrimination provis~on.
This Office cannot give you an advisory opinion on aJiy set of facts involving a particular
. individual or company. However, we cap. provide some general guidelines regarding compliance
with the anti-discrimination provision ofthe INA.
Please note that the U.S. Department ofHomeland Security ("DHS"), U.S. Citizenship
and Irnmigration Services ("USC1S") administers the rules and regulations regarding
employment eligibility verification. In general, federal regulations require employers to
complete an 1-9 form for any individual the employer "hires or recruits or refers for a fee.,,2
However, "[a]n employer will not be deemed to have :Qired an individual for employrnent iffue .
18 u.s.e. § 1324b.
2 8 e.F.R. § 274a.2(b).

"0 ..
individual is continuing in his or her employment imd has a reasonable expectation of
employment at all times.,,3 Whether an employee is considered to have been rehired or
cóntinuing in employment depends upon the particular facts. The regulations enumerate .
exainples of when an employee is continuing in his or her emp"loyment; including when "an
individual is engaged in seasonal employment,,4 or when."[a]n individual is laid offfor lack of
work.,,5 An employer should consult its counsel for aSsistance in deterrnining whether an
employee had a reasonable expectation of employment at aH. times.
Federal regulations irripose different employment eligibility verification pbligations for
individual s previously employed by the employer than for new hires.6 According to the USC1S
Handbook for Employers: Instructions for Completing Form 1-9 ("Handbook for Erilployers"):
"[w ]hen you rehire an employee, you must ensure that he or she is stiU authorized to work. You
may do this by completing a'new Form 1-9 or you may reverify or update the original form by
completing Section 3.,,7 The instructions on the Form 1-9 state: 	. 	, 	.,
Ifyou rehire an employee who has previously completed a Form, 1
9, you may reverify on the employee's original Form 1-9 (or on a
new Form 1-9 if Section 3 of the original has already been used) if:
1, Y ou reblre the employeOe within three years of the initial date of
hire; and
20 ·The employee's previous grant ofemployment authorization .
. has expired, but he or she is now eligible to work ilnder a new
grant of employment authorization; or
3. The e~ployee is still eligible to work on the same basis as when
Form 1-9 was complete do 8 , 	..,
For more information on reverification and updating in this context, please see the
Handbook for Employers.
Finally, please note that.to prevent discrimination'in violation ofthe anti-discrimination
provision ofthe INA during the employmeht eligibility verification process, an employer must
treat all employees similarly, regardless of their citize:nship or ir,nmigration status, or their
~, p.ational origino Accordingly~ any procedure an employer uses to determine when an employee's
employment authorization must be reverified should be applied consistently, regardless of an
employee's citizenship or immigration status, or national origino Additionally, an employer
reverifying an· employee' s employment authorization must not request a specific document or
38 C.F.R. § 274a.2(b)(1)(v'iH):
4 8 C.F.R. § 274a.2(b)(1)(viii)(A)(8).
s 8 C.F.R. § 274a.2(b)(1)(viii)(A)(3).
6 8.C.F.R. § 274a.2(c). 	.
7 Handbook for Employers: Instructions for Completing the FonnI-9, (Employment Eligibi1ity Verification Forro),
Page 12, U.S. Department ofHomeland'Security, U.S. Citizenship and Immigration Services, M-274 (Rev. 7/31/09),
. available at http://wWw.uscis.govlfiles/nativedocuments/m-274,pdf. See also Fonn I-9 Instructions § 3 (Rev.
02/02/09). . , 	.
g Id. See also Forro 1-9 Instructiorts § 3 (Rev. 02/02/09).

combination of documents, but must allow the employee to present either a Li:st A document or a
List C documento 9 	' 	.' 	. 	.
We hope that this informa~on is of assistance to you.
atherine A. BaJ.d
Deputy Special Counsel
9 Id. at20 ..