October 26, 2011 IER Technical Assistance Letter on documentation concerns

U.S. Department of Justice
Civil Rights Division
Office ojSpedal Counselfor Immigration~Related
Urifair Employment Practices ~ NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
OCT t6 2011
BY EMAIL (krobidoux@larabee.com)
Ms. Kimberly Best Robidoux
Larrabee Mehlman Albi Coker LLP
9920 Pacific Heights Blvd., Suite 300
San Diego, CA 92121
Dear Ms. Best Robidoux:
Thank you for your e-mail inquiry dated September II, 2011. In your email you ask
what action, if any, your client must take against an employee where the employee presented a
Social Security card (in combination with a List B document) for I-9 purposes that appeared
genuine when originally presented but was later identified in an internal review as not appearing
to be genuine. In your inquiry, you state that your client initially received a Social Security no
match letter for the employee, in response to which the employee explained that she was
previously not authorized to work, but had recently secured work authorization. Your client then
asked the employee to complete a new Form I-9, at which time she presented the Social Security
card in question. In your email you also explain that all employees for whom your client
received Social Security no-match letters were treated subjected to the same no-match letter
policy, and we presume this to mean that your client's policy was implemented consistently,
regardless of the citizenship status or national origin of the employees affected.
Please note that the Office of Special Counsel (OSe) cannot provide an advisory opinion
on any particular instance of alleged discrimination or 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 hiring,
firing, recruitment or referral for a fee, and unfair documentary practices during the employment
eligibility verification (Form I-9) process (document abuse) on the basis of citizenship or
immigration status or national origin. It also prohibits retaliation for filing a charge, assisting in
an investigation, or asserting rights under the anti-discrimination provision. For more
information about OSC, you may visit our website at www.justice.gov/crtiabout/osc.
Under federal law, an employer may violate 8 U.S.C. § 1324a(a) if that employer knows
(or has constructive knowledge) that an employee is not authorized to work. Mere suspicion or
conjecture is not knowledge. See, e.g., Collins Food IntI. Inc. v. INS, 948 F.2d 549 (9th Cir.
1991). At the same time, an employer has a duty to investigate into situations where it has
knowledge that would lead a reasonable person to believe that an individual is not authorized to
work in the United States. See Mester Mfq. Co. v. INS, 879 F.2d 561 (9th Cir. 1989); New El

Rey Sausage v. INS, 925 F.2d 1153 (9th Cir. 1991)(employer that received specific information
from INS that certain employees may have committed document fraud was on notice of their
potentially unauthorized status; because the employer failed to make further inquiries, it is
deemed to have constructive knowledge of the unauthorized status). 	For example, courts have
found that employers had constructive knowledge when they failed to ask for any proof of work
authorization or ignored notices about employees' unauthorized status from government
authorities. See, e.g., United States v. Cafe Camino Real, 2 OCAHO no. 307, at 39 (1 99 I)(where
employer did not request or review employee's work authorization documents, it may be inferred
that employer knew the individual did not have work authorization documents); u.s. v. Noel
Plastering, 3 OCAHO no. 427, at 320 (1 992)(violation can be established where employer fails
to reverify worker employment eligibility after receiving "specific and detailed" information
from the INS that employees may be ineligible to work). Because the issue you raise pertains in
part to enforcement under 8 U.S.C. § 1324a, OSC cannot state whether an employer has
sufficient information to take further action involving a particular employee. For more
information about facts that might rise to the level of "constructive knowledge," we recommend
you contact Immigration and Customs Enforcement within the Department of Homeland
Security at 1-866-DHS-2ICE or visit http://www.ice.gov.
However, OSC' s authority pertains to equal treatment in the employment eligibility
verification process. Therefore, to the extent that an employer rejects an employee's document
that does not appear to be genuine, OSC strongly advises that it treat all employees consistently
regardless of citizenship status or national origin. This means that immigrants or those who
appear to be foreign-born based on appearance, accent, or surname, should not have their
documents more closely scrutinized than U.S. citizens or those who do not appear to be foreign
born.
We hope this information is helpful.
Sincerely,
Seema Nanda
Acting Deputy Special Counsel