August 18, 2011 IER Technical Assistance Letter on Form I-9s for new employees

U.S. Department of Justice
Civil Rights Division
Office oj5pec ial Co un sellor Im migration-Rela ted
Unfair Em ployment Pr ac /ices - NY A
95 0 Penn sy l va nia Ave, NW
Wash ing/o n. DC 205 30
Ma;n (202) 616·5594
Fax (202) 616·5509
August 18, 2011
Bv First Class Mail and E-mail (C\uini@hansonbridgett.coml
Christina Luini
Attorney at Law
Hanson Bridgett LLP
425 Market Street, 26th Floor
San Francisco, CA 94 10 5
Dear Ms. Luini:
This is in response to your email dated July 21 , 201l. In your email, you inquired
whether an employer who wants to "insource" its custodial services by making offers of
employment "to the individuals employed by the independent contractor who previously
performed custodial work" on the employer' s property must require these individuals to
complete Forms 1-9 , or whether the employer can rely on the Forms 1-9 prepared by the
independent contractor. You also asked whether it would be considered document abuse to
request that these individuals complete Forms 1-9 when they have already completed Forms 1-9
for the independent contractor.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices
COSC") investigates and prosecutes employers charged with national origin and citizenship
status discrimination, as well as over-documentation in the employment eligibili ty verificati on
process Cdocument abuse") and retaliation under the anti-discrimination provision of the
Immigration and Nationality Act (" INA"), 8 U.S.C. § 1324b. For more information on OSC,
please visit our website at: http://www.justice.gov/crtiabout/osc/.
Please note that OSC cannot provide an advisory opinion on any specific ca se or set of
facts. However, we can provide general guidelines as to the coverage of the statute and t he
legality of various pre-enwloyment inquiries under the anti-discrimination provision of the IN A,
8 U.S.C. § 1324b.
An employer must complete the Form 1-9 each time it hires any person to perform labor
or services in the United States in return for wages or other remuneration. See 8 U.S.C. §
I 324a(a)(I)(B); 8 C.F.R. §§ 274a.2(b)(l)(i) and (ii). However, an employer will not be deemed
to have hired an individual for employment, and thus not required to complete a Form 1-9 , if the
individual is continuing in hi s or her employment and has a reasonable expectation of
employment at all times. See 8 C.F.R. §§ 274a.2(b)(l)(viii). Situations in which an individual is
considered "continuing in his or her emp lo yment," include when an individual continues his or

her employment with a "related, successor, or reorganized employer." See 8 C.F.R. §
274a.2(b)(1 )(viii)(A)(7). A "related, succes so r, or reorganized employer" has been interpreted as
limited to employers who : (1) are the same employer but at another location; (2) continue to
emp loy some or a ll of a previous employer's workforce in cases involving a corporate
reorganization, merger, or sale of stock or assets; or (3) continue to employ any employee of
another employer's workforce where both employers belong to the same mUlti-employer
association and the employee continues to work in the same bargaining unit under the same
co llective bargaining agreement. 8 C.F.R. § 274a.2(b)(l)(viii)(A)(7)(i)-( iii ). See also U.S. v.
Marnul, 3 OCAHO 441 (1992). OSC is not able to opine on whether the employer you de scribe
would be considered a "related, successor, or reorganized emp lo yer," as this fa ll s outside the
purview of our jur isdiction. 	For more information on when a company is considered a "related
successor or reorganized employer," you may wish to contact USCIS .
Document abuse occurs when, in order to satisfy the employment eligibility verification
provisions of 8 U.S.C. § 13 24a(b), an employer either requests from an individual more or
di fferent employment eligibility verifica ti on documents than are required for employment
eli gibility ver ifi cation purposes, or rejects documents that on their face reasonabl y appeared
genuine and with discriminatory intent. 8 U.S .C. § 1324b(a)(6).
To the extent that the employer to which you referred decides to request that the
"inso ur ced" employees complete new 1-9 Forms, the employer would unlikely be deemed to
have vio lated the anti-discrimination provision of the INA if all of the " insourced" emp loyees are
treated consistently during the I-9 process, without regard to their citizenship status or national
ongm.
We hope you find this information helpful.
Sincerely,
~ 	fr--Seema Nanda
Acting Deputy Special Counsel
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