December 22, 2010 IER Technical Assistance Letter regarding sharing Forms I-9

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V.S. Department of Justice
Civil Rights Division
Office ofSpecial Counselfor lmlnigration-Related
Unfair Employmenl Practices -NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
BY EMAIL AND FIRST CLASS MAIL 	DEC 22 2010
Karl Hq.esgen Jr.
Safety DireCtor 	.
Diefenderfer Electrical Ctmtractors, Inc.
P.O. Box. 88
·116 South Second Sto
Allentown, PA 18105
Re: 	Tec1111ical Assistance Request Pertaining to general contractoi's request for
subcontractor's I-9s and attachments.
Dear Mr. Buesgén.:
This is in response to your email ofNovember 10, 2010 to the Office of Spe.cial
. Counsel for Immigration Related Unfair Employment Practices ("OSC") ..We apologize
. for the delay in responding to yOU! request while we researched the issues you raised.
Specifically, you seek guidance for subcontráctors who are asked·by their general
contractor to provide 1-9 documentation for the subcontractors' employees.. 	.
You pose the following questions: (1) whether it is legal for a subcontractor to
fumish its 1-9 forms and their attachments to a general contractor; (2) ifit is legal,
whether a sub contractor is legally obligated to furnish its 1-9 forros and iheir attachments
to a general contractor; and (3) iflegally obligated,.what attachme11ts· dr back-up
infonnation the subcontraqtor would furnish ~f tile .subcóntractor' did not photocopy the
documents that it verifiedin.the 1-9 process. . 	.
As you know, ose investigates allegations of national origin and citizenship
status discrimination in the workplace, as well as over-documentation in the employrnent
eligibility verification process ("document abuse") and retaliation under the anti- 	.
cllscrimination provision ofthe lrmnigratioll and Nationality Act ("INA"), 8 U.S.C.
§ 1324b. An employer engages in document abuse where it requests more or different
documents :6:om emp~oyees, or refuses to honor .documents that reasonably appear to be
genuine, with the intent to discriminate on the basis of national origin or irnmigration
status. While we cannot give you an advisory opinion on any particular case OI set of
facts, we can direct you to iilformation that the Department ofHOIneland Security
("DHS") has provided and share general information on the INA's anti-discrimination
provlslons.
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Section 274a(b)(5)ofthe Irnmigration and Nationality Act (!NA) limits the use of
. Form 1-9 and any information contained in or appended to the form to purposes of
enforcement ofthe INA and other very limited circumstances: "[The Forro 1-9] and any
infonnation contained in or appended to such fonn, may not be used for purposes other
than for enforcement oftrus chapter and sections 1001, 1028, 1546, and 1621 ofTitle
18." 	8 U.S.C. §1324a(b)(5). DHS regulatians also provide that the Form 1-9
information may be used on1y by federal officials for the enforcement ofthe INA or
sections 1001, 1028,)546, ar 1621 oftitle 18 ofthe United 8tates Cade, aJ.ld niay not be
used for any other purpase:
(4) Limitation on·use ofForm 1-9. Any infomiation contained in ar
appended to the Fonn 1-9, including copies or electronic images of
documents listed in paragraph (c) of this section used to verify an
individual's identity or employment eligibility, may be used only for
enforcement oftlle Act aJ.ld seSltions 1001, 1028, 1546, ar 1621 of
title 18, Unit~d States Cade;
8 C.f.R. § 274a.2(b)(4).
. DHS's Office ofU.S. Citizensrup and Immigration Services (USC1S) 6versef;1s fue ..
Forro 1-9 process.USCIS; website (www;uscis.gov) has information regarding
enforcement and privacy of the. employment eligibility verification requir.ements af
8 U.S.C. § 1324a. For further information on disclosure ofForm 1-9 documents, we
suggest that you contact tl;te Verification Division ofUSC{S at.(888) 464-4218.
We hope this information is of assistance to you. If you llave further questions,
do not hesitate to contact OSC on ourtoll-free hotline (1-800-255~8155) or to.visit OSC's
website. We hope yOl,l fmd this infonnationhel:eful, and·thank yo~ for contacting ose.
Sincerely,
Katherine Baldwin
Deputy Special Counsel