January 8, 2015 IER Technical Assistance Letter on documentation

U.S. Department of Justice
Civil Rights Division
Office o/Special Counsel/or Immigration-Related
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
January 8, 2015
BY EMAIL (afela@polarislaserlaminations.com)
Anna Fela
Polaris Laser Laminations, LLC
2725 Norton Creek Drive
West Chicago, IL 60185
Dear Ms. Fela:
This is in response to your email dated November 12,2014, to the Office of Special
Counsel for Immigration-Related Unfair Employment Practices ("OSC" or "Office"). We
apologize for the delay in responding. In your email, you request guidance for an employer that
accepted an employee's work authorization documents that appeared genuine, where the
employee later presents "a new social security number and [work authorization] documents and
states that the previous documents were not real." You ask whether "this situation opens [the
employer] up to any discrimination issues in any way if [it] choose[s] to keep or terminate the
employee," and you request guidance on "the correct steps going forward."
OSC cannot provide an advisory opinion on any set of facts involving a particular
individual or entity. However, we can provide some general guidelines regarding employer
compliance with the anti-discrimination provision of the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1324b, which OSC enforces. The anti-discrimination provision prohibits
four types of employment-related discrimination: (1) citizenship or immigration status
discrimination; (2) national origin discrimination; (3) unfair documentary practices during the
employment eligibility verification (Form 1-9 and E-Verify) process ("document abuse"); and (4)
retaliation for filing a charge, assisting in an investigation, or asserting rights under the anti
discrimination provision. 8 U.S.C. § 1324b. For more information about OSC, please visit our
website at: http://www.justice.gov/crt/about/osc.
As you may know, an employer is required to verify the identity and employment
authorization of all newly-hired employees by completing the Form 1-9. 8 U.S.C. § 1324a.
During that process, an employee may choose to present either one unexpired document from
List A of the Form I-9's List of Acceptable Documents or a combination of one unexpired List B
document and one unexpired List C document. See Form 1-9 Instructions, p.3. When reviewing
the documentation presented, an employer must accept documents that reasonably appear to be
genuine and to relate to the person presenting the document(s). Id. The employer should then
record information about the document(s) presented in Section 2 of the Form 1-9. Id.

In a situation where an employer has,properly completed these steps, and an employee
later provides the employer with new work authorization documentation and explains that the
previously-presented documentation was not genuine, u.s. Citizenship and Immigration Services
("USCIS") - the agency that publishes the Form 1-9 -- provides additional guidance. According
to the USCIS Handbook for Employers, Guidance for Completing Form 1-9 (Form M-274 Rev.
04/30/13), available at http://www.uscis.gov/sites/defaultlfileslmes/form/m-274.pdf:
"Y ou may encounter situations other than a legal change of name where an
employee informs you or you have reason to believe that his or her identity is
different from that previously used to complete the Form 1-9. For example, an
employee may have been working under a false identity, has subsequently
obtained a work authorized immigration status in his or her true identity, and
wishes to regularize his or her employment records. In that circumstance you
should complete a new Form 1-9. Write the original hire date in Section 2, and
attach the new Form 1-9 to the previously completed Form 1-9 and include a
written explanation.
In cases where an employee has worked for you using a false identity but is
currently work authorized, the 1-9 rules do not require termination of
employment. ... "
USCIS Handbook for Employers at 24.
This Office cannot identify any violation of 8 U.S.C. § 1324b when an employer
consistently accepts documents that employees choose to present that reasonably appear to be
genuine and relate to the individual, regardless of whether an employee admits that the
documents previously presented for employment eligibility verification were "not real." Nor can·
this Office identify any 1324b violation when an employer allows an employee to continue
employment under the circumstances you present. However, to the extent an employer rejects
valid work-authorization documentation or terminates employees because of their citizenship
status or national origin, the employer could violate the anti-discrimination provision.
An employee who is terminated under the circumstances you describe may allege
citizenship status discrimination. Citizenship status discrimination under the anti-discrimination
provision of the INA occurs when an employer treats individuals differently during hire or
termination on the basis of citizenship or immigration status. U.S. citizens, recent lawful
permanent residents, refugees, and asylees are protected from this type of discrimination. To the
extent a protected individual files a charge alleging discriminatory termination based on
perceived or actual immigration status or the perceived lack of authorized status, this Office
would investigate the charge. We note that an employer with a consistently-followed policy of
terminating individuals for providing false information during the hiring process may have a
legitimate non-discriminatory reason for the termination. Accordingly, whether or not this
Office concludes that such a termination violates the anti-discrimination provision depends upon
the facts presented.
Similarly, an employee who is terminated in this context may also allege national origin
discrimination. National origin discrimination ul1der 8 U.S.C. § 1324b occurs when an employer
treats employment-authorized individuals differently during hire or termination on the basis of
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foreign birth, ancestry, or the appearance of foreign birth or ancestry. All employment
authorized individuals are protected from this type of discrimination; however, this Office only
has national origin jurisdiction over employers with four to 14 employees, whereas another
federal agency, the Equal Employment Opportunity Commission, has national origin jurisdiction
over employers with 15 or more employees.
Unfair documentary practices, also known as "document abuse," may also be implicated
in the scenario you describe. An unfair documentary practice occurs when an employer rejects
valid Form 1-9 documentation, demands more or different Form 1-9 documentation, or requests
specific Form 1-9 documentation based on an employment-authorized individual's citizenship
status or national origin. All employment-authorized individuals are protected from this type of
discrimination. Accordingly, an employer that treats individuals differently when updating Form
1-9 information because of citizenship status or national origin may violate the anti
discrimination provision.
We hope this information is helpful. Thank you for contacting OSC.
Sincerely,
./2 1
9Alberto Ruisanchez
Deputy Special Counsel
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