January 24, 2011 IER Technical Assistance Letter on document requests

OCR transcription for search; preserved printed pages are authoritative

DEPARTMENT OF MUSIC

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Office of Special Counsel for Immigration-Related Unfair Employment Practices - NYA 950 Pennsylvania Ave, NW Washington, DC 20530 Main (202) 616-5594 Fax (202) 616-5509

By Email (tfox@rifkinfox.com)

JAN 2 4 2011

Tammy Fox-Isicoff, Esq. Rifkin &amp; Fox-Isicoff, P.A. 1110 Brickell Avenue, Suite 210 Miami, Florida 33131

Dear Ms. Fox-Isicoff:

This letter responds to your letter to the Office of Special Counsel for Immigration-
Related Unfair Employment Practices (OSC), dated December 21, 2010. In your letter, you ask
whether an employer faces any liability under 8 U.S.C. §1324b if the employer is required by
United States Citizenship & Immigration Services (USCIS) to request certain documents from
his employees in excess of Form I-9 requirements as evidence that the jobs he is obligated to
create as an EB-5 visa holder have been filled by work-authorized individuals.

Please note that OSC cannot provide an advisory opinion on any set of facts involving a
particular individual or entity. We can provide, however, some general guidelines regarding the
anti-discrimination provision of the Immigration and Nationality Act (INA) enforced by OSC,
8 U.S.C. §1324b, and employer actions under that provision. The 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 I-9) process ("document abuse"); and retaliation for
filing a charge, assisting in an investigation, or asserting rights under the anti-discrimination
provision.

With respect to your query, the request for more or different documents violates our
statute only if committed with the intent to discriminate based on citizenship status or national
origin. 8 U.S.C. §1324b(a)(6). An employer can avoid discriminatory documentary practices by
ensuring a consistent approach to employment eligibility verification is taken without regard to
an employee's citizenship status or national origin. Further, OSC will bring the matter you raise
to the attention of USCIS.

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We hope you find this information helpful.

Sincerely,
Kithere Body KR

Katherine A. Baldwin
Deputy Special Counsel