March 24, 2010 IER Technical Assistance Letter on completing Form I-9

u.s. Department of Justice
Civil Rights Division
Off/ce ojSpecial Counseljor Immigration Related
Unjair Employment Practices - NYA
950 Pennsylvania Avenue, NW
Washington, DC 20530
Victoria Donoghue
N achman & Associates
V1SASERVE PLAZA
487 Goffle Road
Ridgewood, NJ 07450
Dear Ms. Donoghue:
This letter responds to your e-mail received by the Office of Special Counsel for
Immigration Related Unfair Employrnent Practices (OSC) on February 1, 2010. Your emaíl .
poses questions about when the Employment Eligibility Verification Form 1-9 (Form 1-9) can be
completed. Specifically you ask whether sorne components of a large employer can complete the
Form 1-9 on the first day ofwork while others complete the Form 1-9 before the first day ofwork.
As you may know, OSC enforces the anti-discrimination provision ofthe 1mmigration
and Nationality Act ("INA"), as amended, 8 U.S.C. § 1324b. The anti-discrimination provision
prohibits four types of unlawful conduct: (1) citizenship or immigration status discrimination; (2)
national origin discrimination; (3) unfair documentary practices during the employrnent
eligibility verification (Form 1-9) process ("documentabuse"); and (4) retaliation for filing a
charge or asserting rights under the anti-discrimination provision.
This office cannot give you an advisory opinion on any set of facts involving a particular
individual o;r company. 	However, we can provide sorne general guidelines regarding
compliance with the anti-discrimination provision ofthe INA.
The Form 1-9 is published by the U.S. Department ofHomeland Security (DHS) .
. According to DHS guidance, an employer may request 1-9 documents prior to the first day of
work, so long as an offer of employment has already been unambiguously extended and
accepted.! 	However, an employer that adopts this practice - whether across the board or just in
! "The law requires that you complete the Forro 1-9 only when the person actually begins working. However, you
may complete the forro earlier, as long as the person has been offered and has accepted the j ob. You may not use the
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sorne departments -- should take affirmative steps to ensure that employees are not treated
differently on the basis of citizenship status or national origino In addition,if the new employee
has forgotten, or does not have, a single document or combination of documents to establish
authorization to work and identity, the employer has, in most cases, up to three business days to
complete the Form 1-9.2
We hope this information is of assistance to you. Please feel free to contact us through
our to11 free number at 1-800-255-7688 ifyou have any further questions.
Sincerely,
1-9 process to screen job applicants." HANDBOOK FOR EMPLOYERS: INSTRUCTIONS FOR COMPLETING
THE FORM 1-9 (Employment EligibilityVerification Forro), Page 29, U.S. Department ofHomeland Security, U.S.
Citizenship and Immigration Services, M-274 (Rev. 7/31/09), available at bttp://www.uscis.gov/files/fonl1/m-274.pdf
2 Id. at 30.