January 5, 2011 IER Technical Assistance Letter on document requests

U.S. Department of Justice
Civil Rights Division
Office a/Speclat Counsclfor Immigration-Related
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616·5594
Fax (202) 616·5509
JAN - 5 2011
BY FIRST CLASS MAIL AND EMAIL (RKrug@HSPLEGAL.COM)
Mr. Robert Krug, Esq.
70 W. Madison St., Suite 4000
Chicago, IL 60602
Dear Mr. Krug:
Thank you for your e-mail inquiry dated November 21, 2011. In your email you ask if
there are any circumstances during the Form 1-9 process when an employer can request
documents outside of those on the List of Acceptable Documents. In your follow-up inquiry,
you explain that your client seeks EB-5 investor status, pursuant to 8 C.F.R. § 204.6, and would
like guidance on requesting additional or specific documents during the employment eligibility
verification (Form 1-9) process in order to confirm that an employee is a "qualifying" worker for
EB-5 purposes.
Please note that the Office of Special Counsel for Immigration 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 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 tmfair documentary practices during the employment eligibility verification (Form
1-9) 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, you may visit our website
at www.justice.gov/cli/aboutlosc or call our toll-free hotline at 800-255-8155.
Pursuant to federal law, employers must verify the identity and employment authorization
of each person they hire. 8U.S.C. § 1324a(b)(1)(a). Under 8 U.S.C. § 1324a(b)(I)(B),anew
employee may choose to show either a Form 1-9 List A document (identity and work
authorization), or both a List B (identity) and a List C (work authorization) document. See U.S.
Citizenship !U1d Immigration Service (USCIS) Handbook for Employers, Instructions for
Completing Form 1-9 (M-274) (Rev. 06/01111) (hereinafter "M-274"), pages 4-5, 37-38
(discussing an employee's choice of employment eligibility and identity documents).

No provision of the INA specifies any exceptions or special rules regarding altering the types of
1-9 documents acceptable to determine whether employees are "qualifying" workers for EB-S
purposes. Moreover, neither the Form 1-9 nor the M-274 discusses any exceptions based on
whether an individual is a qualifying employee for EB-S purposes. See id.
We recognize that, in addition to other requirements, EB-S Immigrant Investors must
create or preserve at least 10 full time jobs for "qualifying" employees, and that certain
categories of work authorized individuals, such as non-immigrant aliens, do not constitute
"qualifying" employees. 8 C.F.R. § 204.6. We caution, however, against verifying qualifying
status during or through the Form 1-9 process. An employer that requests a specific document or
additional documents for the Form 1-9 beyond the List of Acceptable Documents based on an
employee's immigration or citizenship status may be deemed to violate the anti-discrimination
provision of the INA, depending on the specific circumstances of the case. Therefore, OSC
encourages an employer to develop a process to determine "qualifying" status that is separate
from the Form 1-9 process.
We hope this information is helpful.
Sincerely,
~~Seema Nanda
Acting Deputy Special Counsel
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