August 19, 2011 IER Technical Assistance Letter on use of E-Verify's Self Check

U.S. Department of Justice
Civ il Rights Division
Office a/ Special CO III/ selJo r llllllligf'(l (i Oi I-Ue/oled
UII/air Emp/oy me/l/ Practice!}' - N YA
950 Pellt/sy lvallia Aile , NW
Wa s hin g/oil . DC 20530
Mal" (202) 616-5594
Fax (202) 616-5509
August 19 , 20 II
By Email and First Class Ma il
Emily Tulli, Esq.
National Immi gration Law Center
1441 1 Street NW, Suite 1110
Washington, DC 20005
Dear Ms. Tulli :
This letter respo nd s to your ema il to the Department of Homela nd Security, dated July
2 1,20 II , which has been referred to the Office of Special Counsel for Immigra ti on-Related
Unfair Empl oyment Practices ("OSC") . In your emai l, yo u ask wh et her a union hiring hall can
(I) encou rage workers to obtain a positive E-Verify Self Check result so that they can be
marketed to potential emp loyers as workers who will not run into any E-Verify issues, or (2)
require workers to obtain a positive E-Ver ify Self Check result query before they can be referred
for emp loyment by the union hiring hall.
Please note that OSC cannot provide an advisory opinion on any set of facts involving a
particular individual or entit y. We can provide, however, so me general guidelines regarding the
anti-discrimination provision of the Immigration and Nationality Act (INA) enforced by OSC,
8 U.S.C. § 1324b, and prohjbited employer actions u nd er that provision. The anti-discrimination
provision proh ibits four types of employment-related discrimination against work-authorized
individuals: citizenshjp or immigration status di scrimination; national origin discrimination;
unfair documentary practices during the employment e li gi bi lity verification process; and
retaliation for filing a charge, assisting in an investigation, or asserting ri ghts under the anti
discrimination provision.
With respect to your quer y, as an initi al matter, U.S. Citizenship and Immigration
Services ("USC IS") is the primary agency responsible for admi ni stering and regulating the use
ofE-Ver ify Se lf Check. The union hiring ha ll 's practices may vio late USCIS regulation s;
spec ifi ca ll y, USC IS gu id ance provides that a positive Se lf Check result sho uld not be a co ndition
of membership into any group or organization and is not to be required for receipt of any benefit,
service, or good from a federal, state or lo cal agency or a private party. 	usc rs ,Self Check
Know YOUI' Rights, www. uscis.gov/selfc heck (fo ll ow "Know Your Rights" hyperlink).
USCIS gu id ance further provides that employers may not require employees or potential
employees to use Self Check under any circumstance s. usc rs ,Self Check Know Your Rights,

www.uscis.gov/selfcheck (follow " For EmployeFs" hyperlink). Requiring applieants to provide
proof of their employment authorization before establishing an employment relationship is
known as "pre-screening" and may constitute a violation of the anti-discrimination provision of
the Immigration and Nationality Act if conducted selectively on the basis of citizenship status or
national origin.
An employment eligibility verification policy that is facially discriminatory would violate
the anti-discrimination provision of the INA. Further, a policy of encouraging or requiring
workers to obtain a positive E-Verify Self Check result by an employer or recruiter or referrer for
a fee, even if facially neutral, may constitute an immigration-related unfair employment practice
if it is implemented or adopted on the basis of citizenship status or national origin and has the
effect of di scriminating on those bases. See 28 C.F.R. Part 44 Order No. 1225-87 Subpart II
("[t]he intent standard makes illegal facially neutral policies which are intended to discriminate
on prohibited bases and have that effect .... Further, a facially neutral policy neutrally applied,
but adopted for the purpose of discriminating on a prohibited basis and having that effect, is
similarly prohibited."). We further note that an employer that considers an applicant or
employee's Self Check information in the hiring process, regardless of whether that information
comes from a referrer for a fee or other source, may also run afoul of the anti-discrimination
provision of the INA if it is determined that the employer is using this information based on the
individual's national origin or immigration status.
We hope you find this information helpfnl.
Sincerely,
~~
Seema Nanda
Acting Deputy Special Counsel