December 30, 2013 IER Technical Assistance Letter on document requests during internal Form I-9 audit

U.S. Department of Justice
Civil Rights Division
Office of Special Counselfor Immigration-Related
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
December 30, 2013
BY EMAIL (lauren@rickgump.com)
Lauren Alien, Esq.
The Law Offices of Richard A. Gump, Jr. P.C.
One Galleria Tower, Suite 1940
13355 Noel Road, LB 39
Dallas, Texas 75240-6834
Dear Ms. Allen:
Thank you for contacting the Office of Special Counsel for Immigration-Related Unfair
Employment Practices ("OSC"). This is in response to your email to OSC, dated November 18,
2013. We apologize for the delay in our response. In your email, you ask whether, in the context
of an internal Form 1-9 audit, an employer may request the employment eligibility
documentation presented at the time the Form 1-9 was completed, if the copies of the
documentation "are unclear and prevent [the] forensic evaluation of their genuineness." You
explain that "the employer may have a significant need to ensure an authorized workforce in a
sale to another company or to avoid losing valued employees in an ICE audit." In addition, you
ask whether the employer may, in the alternative, request current employment authorization
documentation if the documentation presented at the time the Form 1-9 was completed is no
longer available.
OSC enforces the anti-discrimination provision of the Immigration and Nationality Act
("INA"), as amended, 8 U.S.C. § 1324b. The anti-discrimination provision prohibits citizenship
or immigration status discrimination, national origin discrimination, unfair documentary
practices (i'document abuse") during the employment eligibility verification (Form 1-9 and E
Verify) processes, and retaliation for filing a charge or asserting rights under the anti
discrimination provision. More information on OSC can be found on our website:
www.justice.gov/crt/about/osc. Although OSC cannot give you an advisory opinion on any set
of facts involving a particular individual or company, we are able to provide some general
guidelines regarding compliance with the anti-discrimination provision of the INA, 8 U.S.C. §
1324b.
While not required by law, an employer may conduct an internal audit of Forms 1-9 to
ensure ongoing compliance with the employer sanctions provision of the INA. Internal audits
should not be conducted because of employees' citizenship status or national origin, or in
retaliation for exercising their rights under 8 U.S.C. § 1324b. Moreover, employers must apply
consistent standards when reviewing Forms 1-9 for deficiencies, regardless of the citizenship
status or national origin of the employee. As a threshold matter, the standard for reviewing Form

1-9 documentation during an internal audit does not change from the standard applied during the
initial employment eligibility verification process; an employer is required to accept Form 1-9
documentation that reasonably appears to be genuine and to relate to the individual presenting
the documentation. We note that this standard does not require an employer to utilize forensic
techniques, and that different levels of scrutiny based qn the type of document or the citizenship
status or national origin ofthe employee may violate the anti-discrimination provision. Further,
as employers are not required to photocopy 1-9 documentation (except for certain documents
when an employer uses E-Verify), an employer should not conclude, solely based on unclear
photocopies of Form 1-9 documentation, that an employee's Form 1-9 documentation is not
genuine or does not relate to the individual. Put differently, an employer should not request to
see originally-presented documents or alternative documents solely because photocopies are
unclear or where documents originally-presented were not photocopied. Moreover, requesting
such documents on the basis of citizenship status or national origin may violate the anti
discrimination provision of the INA.
We hope this information is helpful. If you have further questions, please contact our
employer hotline at (800) 255-8155.
Sincerely,
Alberto Ruisanchez
Acting Deputy Special Counsel