February 3, 2010 IER Technical Assistance Letter on avoiding discrimination during ICE audit

U.S. Department of Justice
Civil Rights Division
Office ofSpecial CowJselfor lmmigration Related
Unfair Employment Practices - NYA
950 Pennsylvania Avenue, NW
Washington, DC 20530
February 3,2010
Via electronic mail to: ann@allott.com
-AlU1 Allott, Esq.
Allott Immigration Law Finn
CentelU1ial, Colorado 80122
Dear Ms. Allott:
This letter responds to your e-mail of October 14, 2009, seeking guidance on how an
el11ployer should, consistent with the anti-discril11ination provision ofthe Iml11igration and
Nationality Act (INA), 8 US.C. § 1324b, respond to a ''Notice of Suspect Documents" issued by
Il11l11igration and Customs Enforcel11ent (ICE) ofthe Department ofHomeland Security (DHS).
Your e-mail states that one ofyour client's received such a Notice on Septel11ber 18, 2009,
following an audit ofyour client's Fonns 1-9 by ICE.
The Office of Special Counsel for Il11migration Related Unfair Employment Practices
(OSC) cannot provide an advisory opinion on any particular instance of alleged discrimination or
on any set of facts involving a pmiicular individual or entity. However, we can provide some
general guidelines regarding employer cOl11pliance with the INA's anti-discril11ination provision.
A Notice of Suspect Documents is issued by ICE based on a physical audit of aú
el11ployel"s F01111S 1-9. S"ee 8 U.S.C. §274a.9(c); 8 C.F.R. §274a.9(c). The Notice identifies
those employees that ICE believes may not be authol'ized to work in the United States based on
the documents and other inf01111ation listed in the employee's Form 1-9. Id. 	See alsa United
Sta tes v. LFW Dairy Carp., d/b/a J &J Dairy COlp., 10 OCAHO no. 1129, at 3 and 4 (2009).
The anti-discl'imination provision of the INA, 8 US.C. §1324b, prohibits the request for
specific docul11ents or the l'ej ection of documents during the employment eligibility vel'ification
process with the intent to discriminate on the basis of national origin or citizenship status. See 8
U.S.C. §1324b(a)(6). However, it has been long recognized that action by an employer taken fol'
reasons other than an intent to discriminate does not constitute an unfair employment practice
within the l11eaning ofthe anti-discrimination provision of the INA. See Ondina-Mendez v.
Sugar CreekPacking Ca., 9 OCAHO no: 1085, at 18-19' (2002). 	While anICE Notice of
Suspect Documents may pro vide a non-discriminatory reason behind the decision to re-verify an
employee's employment eligibility, the standard for accepting documents presented by the

employee to re-establish his or her employment eligibility remains the same - whether the
documentes) presented reasonably appearon their face to be genuine and to relate to the person
who presents the documentes). See 8 C.F.R. §274a.2(b)(1)(ii)(A).
We hope that this information is helpful.
Sincere.1J!,
¿f#f~~
Katherine A. B 	win
Deputy Special Counsel
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