March 23, 2010 IER Technical Assistance Letter on verifying employment authorization

U.S. Department of Justice
Civil Rights Division
Office of Special Counsel for Immigration Related
Unfair Employment Practices - NYA
950 Pennsylvania Avenue, NW
Washington, DC 20530
MAR 23 2010
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Sent by First Class Mail and Electronic Mail (Richard.Galvan@domail.maricopa.edu)
Rick Galván, Esquire
Assistant General Counsel
Legal Department
Maricopa Community Colleges
2411 W. 14th St.
Tempe, AZ 85281
Re: 	Employers' Obligations to Reverify Employees' Employrnent Eligibility
Dear Mr. Galván:
Thank you for contacting the Office of Special Counsel for 1mmigration-Related Unfair
Employment Practices ("OSC"). In your email ofMarch 2,2010, you ask for guidance on an
employers' responsibilities with respect to employees who present temporary evidence of
employment authorization in the employment eligibility verification (Fonn 1-9) process. You
also ask if employers operating in Phoenix, Arizona, have a safe harbor from liability under the
anti-discrimination provision ofthe 1mmigration and Nationality Act ("INA"), 8 U.S.e. § 1324b.
This office cmIDot give you an advisory opinion on any set of facts involving a particular
individual or company. However, we can provide some general guidelines regarding compliance
with the anti-discrimination provision ofthe INA.
As you know, OSC enforces the anti-discrimination provision ofthe INA. The anti
discrimination provision prohibits four types ofunlawful conduct: (1) citizenship or immigration
status discrimination with respect to hiring, firing, and recruitment or referral for afee; (2)
national origin discrimination with respect to hiring, firing, and recruitment or referral for afee;
(3) discriminatory documentary practices during the employment eligibility verification (Form 1
9) process ("document abuse"); and (4) retaliation for filing a charge or asserting rights under the
anti-discrimination provision.
Your email seeks information about an employer's obligationswith respect to employees
who present temporary evidence of employment authorization in the Form 1-9 process. The U.S.
Department ofHomeland Security ("DHS"), U.S. Citizenship and Immigration Services

("USClS") administers the rules and regulations regarding employment eligibility verification.
USClS's Handbook for Employers: Instructions for Completing the Form 1-9 (Form M-274)
discusses reverification of an employee's employment authorization on page 12:
When an employee's employment authorization expires, you must reverifyhis or
her employment authorization. You may use Section 3 ofForm 1-9, or, if Section
3 has already been used for a previous reverification or update, use a new Form
1-9. lfyou use a new form, write the employee's name in Section 1, complete
Section 3, and retain the new fonn with the original. The employee must present a
document that shows either an extension ofhis or her initial employment
authorization or new employment authorization. lf the employee cannot provide
you with proof of current employment authorization (e.g., any document from List
A or List C, inc1uding an unrestricted Social Security card), you cannot continue
to employ that persono
NOTE: Do not reverify an expired U.S. passport or passport card, an Alien
Registration Receipt Card/Permanent Resident Card, or a List B document that
has expired.
To maintain continuous employment authorization, an employee with temporary
employment authorization should timely file for new employment authorization or
an extension of stay prior to the expiration ofhis or her current document or
authorized period of stay. lf the employee is authorized to work for a specific
employer and has filed an application for an extension of stay, he or she may
continue employment with the same employer for up to 240 days from the date the
authorized period of stay expires.
lfan employee has timely filed for new employment authorization document
(Form 1-766) and USClS fails to adjudicate that application within 90 days, the
employee will be granted an employment authorization document for a period up
to 240 days.
NOTE: You must reverify an employee's employment authorization on Form 1-9
not later than the date the employee's employment authorization expires.
The Handbook for Employers maybe duyvnloaded for free through USClS's website,
www.uscis.gov.
To prevent discrimination in violation of at anti-discrimination provision ofthe INA, an
employer must treat aH employees the same in the employment eligibility verification process,
regardless of their citizenship or immigration status, or their national origino Accordingly, any
procedure an employer uses to implement its obligations to reverify employees whose
employment authorization documents expire must be applied consistentIy, regardless of an
employee's citizenship or immigration status, or national origino AdditionaHy, an employer
. reverifying an employee' s employment authorization must not request a specific document .or

combination of documents, but must allow the employee to present his or her choice of
documentes).
FinalIy, your email asks whether there is a safe harbor from liability under the' anti
discrimination provision ofthe INA for employers operating in Phoenix, Arizona. The anti
discrimination provision contains no safe harbór. All employers operating in the United States
are required to comply with the anti-discrimination provision.
1 hope that this information is helpful. For further infonnation on the INA's anti
discrimination provision, please fee1 free to consult OSC's website at
http://www.justice.gov/crt/osc/.
Deputy Special Counsel