December 28, 2011 IER Technical Assistance Letter on verifying employment eligibility

U.S. Department of Justice
Civil Rights Division
Office a/Special Counseljor Immigration-Related
Ur/fair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616·5594
Fax (202) 616·5509
DEC 2 8 2Ull
BY EMAIL ANDFIRSTCLASSMAIL(craig.longnecker@evrinc.com)
Craig Longnecker
1575 DeLucchi Lane, Suite 207B
Reno, Nevada 89502
Dear Mr. Longnecker:
Thank you for your e-mail, dated August 25, 2011, to the Office of Special Counsel for
Immigration-Related Unfair Employment Practices (OSC). We apologize for the delay in our
response. In your email you inquire about an employer that wishes to use two different
employment eligibility reverification processes depending upon whether an employee has had "a
change in citizenship status" at the time of employment eligibility reverification (referred to in
your inquiry as "presentation of continued work authorization"). 	Specifically, you propose that
where an employee whose work authorization has expired has also had "a change in citizenship
status," the employer representative completing Section 3 would ask the employee to fully
complete Section 1 of the Form 1-9 (presumably to identify his or her new "citizenship status" by
checking the appropriate box in Section 1). In contrast, in instances in which an employee needs
to have his or her employment eligibility authorization reverified but has not had "a change in
citizenship status," you propose that the employer only record the employee'S name in Section 1
in addition to completing Section 3. You explain that the two different reverification processes
are necessary because the employer "mayor may not have certain government contracts which
require ... employees to be of either US citizen or Lawful Permanent Resident status." As a
preliminary matter, you do not specify whether the change in citizenship status that you refer to
is limited only to employees who have adjusted their status to U.S. citizen, or whether it more
broadly refers to employees who have adjusted their status from either one immigrant category to
another or from non-citizen to U.S. citizen.
OSC is responsible for enforcing the anti·discrimination provision of the Immigration
and Nationality Act ("INA" or "the Act"), 8 U.S.C. § 1324b, which prohibits discrimination in
hiring, firing, or recruitment or referral for a fee that is based an individual's national origin or
citizenship status. The statute also prohibits unfair documentary practices during the employment
eligibility verification (Form 1-9) process on the basis of citizenship status or national origin
(document abuse), and retaliation or intimidation. 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 INA's anti-discrimination provision.

The anti-discrimination provision ofthe INA prohibits citizenship status discrimination in
hiring, firing or recruitment or referral for a fee. 	8 U.S.C. § I 324b(a)(I)(B). The prohibition on
citizenship status discrimination, however, does not apply where United States citizenship is
required by "law, regulation, executive order, or federal, state, or local government contract." 8
U.S.C. § 1324b(a)(2)(C). An employer may in those limited circumstances impose a United
States citizenship requirement on those specific jobs covered by the law, regulation, order, or
contract. Otherwise, it is unlawful for an employer to limit the consideration of job applicants
solely to U.S. citizens or lawful permanent residents. Your inquiry suggests that an employer
already employing a workforce consisting of both citizens and non-citizens may need to
ascertain current citizenship or immigration status before assigning an employee to work on a
particular government contract. Therefore, you propose that an employer in this situation rely on
the Form 1-9 process to ascertain current "citizenship status." You describe a proposed process
in which at the time of reverification, an employee who has had a change of "citizimship status"
will need to complete Section I of the Form 1-9 in its entirety, unlike employees being reverified
who have not had a change in "citizenship status."
As you may know, at the time of initial employment eligibility verification, employees
must complete Section 1 ofthe Form 1-9. See US. Citizenship and Immigration Services,
Handbook for Employers, Instructions for Completing Form 1-9, (Form M-274, Rev. 06/01111),
p. 3. For those employees whose employment authorization has expired, the employer must
reverify the worker's continued employment authorization no later than the date the work
authorization expires by either completing Section 3 on the original Form 1-9 or by completing a
new Form 1-9. 	See Us. Citizenship and Immigration Services, Handbook for Employers,
Instructions for Completing Form 1-9, (Form M-274, Rev. 06/01111), pp. 9-10; US. Citizenship
and Immigration Services, Form 1-9, Employment Eligibility Verification, (Form 1-9, Rev.
08/07/09), p. 2. A U.S. citizen or noncitizen national never needs reverification. In addition, a
lawful permanent resident who presented either a permanent resident card (Form 1-551) or a
combination of a List B document and an uurestricted Social Security card for the Form 1-9
should never be reverified. When completing a new Form 1-9 for reverification, the employer
must write the employee's name in Section 1 ofthe new Form 1-9 and complete Section 3. Id.
OSC is unaware of any guidance that permits an employer to ask an employee to
complete all of Section 1 on a new Form 1-9 at the time of reverification. Moreover, to the
extent that an employer adopts a procedure requiring employees with a change of citizenship or
immigration status to provide additional information at the time of reverification, the employer
representative conducting the reverification may be more likely to ask the employee to produce
documents evidencing his or her change in citizenship or immigration status. Employers that
request more or different documents during the initial employment eligibility verification process
or during the employment eligibility reverification process on the basis of national origin or
citizenship status may violate the anti-discrimination provision of the INA. Therefore, to the
extent an employer seeks to ascertain current citizenship status for any of its employees in order
to determine whether a particular employee may work on a govermnent contract, OSC strongly
recommends maldng that assessment separate and apart from the 1-9 process, and not necessarily
at the same point in time as the employee's employment authorization expires.

Please also note that all work authorized individuals, including visa holders are protected
from document abuse under 8 U.S.C. § I 324b(a)(I)(A) and (a)(6), as well as from retaliation
under 8 U.S.C. §1324b(a)(5). ; United States v. Townsend Culinary, Inc., 8 OCAHO no. 1032
(\999) (relief ordered for all victims of document abuse without distinction as to status as a
"protected individual"); United States v. Guardsmark, Inc., 3 OCAHO no. 572 (\993) (all work
authorized individuals are protected from document abuse).
We hope that this information is helpful. If you have any questions regarding this matter,
please do not hesitate to contact the undersigned attorney at \-800-255-7688 (toll free) or
directly at (202) 514-5686. Thank you for your anticipated cooperation in this matter.
Sincerely,
/
SeemaNanda
Acting Deputy Special Counsel