June 10, 2010 IER Technical Assistance Letter regarding Form I-9 storage

u.s. Department of Justice
Civil Rights Division
Office ofSpecial Counselfor Immigration Related
Unfair Employment Practices - NYA
950 Pennsylvania Avenue, NW
Washington, DC 20530
Via Email:
Email: Melissa.K.DeGuia@BakerNet.com
Melissa K. De Guia, Esq.
Associate
Baker & McKenzie LLP
One Prudential Plaza, Suite 3000
130 East Randolph Drive
Chicago, lL 60601
Dear Ms. De Guia:
Thank you for your email, dated November 23, 2009. We apologize for the delay in our
response. In your correspondence, you state that the lrnmigration and Nationality Act (INA)
makes no reference as to whether the Form 1-9 should be maintained in an employee's file:
Furthermore, you ask whether it is advisable to do so, and ifthe Office of SpeciaI Counsel for
lmmigration Related Unfair Employment Practices (OSC) has ever issued a directive to separate
the Form 1-9 from the employee's file.
This office cannot give you an advisory opinion on any set of facts involving a particular
indIvidual or company. However, we can provide sorne general guidelines regarding compliance
with the anti-discrimination provision ofthe INA.
The Office of Special Counsel for lrnmigration Related Unfair Employment Practices
(OSC) in the Civil Rights Division oftheU.S. Department of Justice investigates and prosecutes
employers charged with national origin and citizenship status discrimination, as well as over
documentation in the employment eligibility verification process ("document abuse") and
retaliation under the antidiscrimination provision ofthe INA, 8 U.S.C. § 1324b. Congress
created OSC because of concem that making employers subject to civil and criminal sanctions
for knowingly hiring individual s unauthorized to work in the United States might result in
discrimination, either against those who look or sound "foreign" or those who are not U.S.
citizens. For more information about OSC, please visit our website at
http://www.justice.gov/crt/osc.
OSC has not issued guidance advising whether an employer should separate Forms 1-9
from employee files. However, the three agencies that are authorized to inspect 1-9 Forms - the
Department ofHomeland Security (DHS), OSC and the U.S. Department ofLabor - may provide
an employer with only three days' notice prior to inspecting Forms 1-9, and employers who
, refuse or delay an inspection will be in violation ofDHS retention requirements. See 8 C.F.R. §
274a.2. Thus, an employer may prefer to file an ~mployee's 1-9 form in a way that makes it easy
to retrieve.

For more information regarding the retention ofForms 1-9 you may call the U.S.
Citizenship and Immigration Services (USCIS) customer service hotline at 1-800-375-5283, or
you may visit the USCIS website at www.uscis.gov.