April 29, 2010 IER Technical Assistance Letter on employer's honesty policy

U.S. Department of Justice
Civil Rights Division
Office of Special Counsel for Immigration Related
Unfair Employment Practices - NYA
950 Pennsylvania Avenue, NW
Washington, DC 20530
. April29, 2010
Nicole Gardner, Esq.
Gardner and Hughes
1701 South Boulevard
Charlotte, NC 28203
Dear Ms. Gardner,
This letter is in response to your e-mail ofFebruary 12,2010, seeking guidance on how an
employer should, consistent with the anti-discrimination provision of the Imrnigration and
Nationality Act ("INA"), 8 U.S.C. §1324b, deal with various situations involving the transition of
an employee from undocumented work status to legally authorized work status. We apologize for
the del ay of our response.
The Office of Special Counsel for lmmigration-Related Unfair Employrnent Practices
("OSC") cannot provide an advisory opinion on any particular instance of alleged discrimination or
on any set offacts involving aparticular individual or entity. However, we can provide some general
guidelines regarding employer compliance with the INA's anti-discrimination provision. The anti
discrimination provision prohibits discrimination on the basis of national origin, citizenship status,
or immigration status, including document abuse during the employment eligibility verification
process, and retaliation.
In your e-mail, you ask three questions. First, you ask about an employer' s obligations when
the employer discovers that an employee, though having previously provided false work
authorization documents, is now authorized to work. The INA prohibits an employer from hiring
an individual "knowing the alien is an unauthorized alien ... with respect to such employrnent." 8
U.S.e. § 1324a(a)(1)(A). However, ifthere is no actual or constructiveknowledge bythe employer
that the employee is an unauthorized alien, then § 1324a(a)(1)(A) is not violated. See Mester Mfg.
Co. v. INS, 879 F.2d 561, 566-67 (9th Cir. 1989) (holding that a violation of § 1324a(a)(1)(A)
requires a showing that the employer had actual or constructive knowledge that the employee is an
unauthorized alien). Note also that an employer's good faith compliance with the requirements of
the Form 1-9 is a defense to an alleged violation of § 1324a(a)(1 )(A). Id § 1324a(a)(3). Thus, if an
employer seeks appropriate documents for the Form 1-9 and the documents reasonably appear to be
genuine on their face and to relate to the person, then the employer is presumed not to have violated
§ 1324a(a)(1)(A). 	See 	Collins Foods Int'l, Ine. V. INS, 948 F.2d 549, 553 n.9 (9th Cir. 1991)
(explainingthat an affirmative defense to § 1324a(a)(1)(A) can be shown by an employer "who has
complied in good faith with the verification requirements" ofthe Form 1-9, as long as the documents
presented "reasonably appear on their face to be genuine").

With respeet to eontinuing employment, the !NA provides that "[i]t is unlawful for a person
or other entity, afiei' hiririg an alien for employment in aeeordanee with paragraph (1), to eontinue
to employ the alien in the United States knowing the alien is (or has beeome) an unauthorized alien
with respeet to sueh employment." 	Id § 1324a(a)(2). 	However, the eourts have held that the
employmentof eurrent1y authorized employees is permissible, even ifthe employees were previously
unauthorized to work. NLRB v. A.P.R.A. Fuel Dil Buyers Group, 134 F.3d 50, 57 (2d Cir. 1997).
y our seeond question asks whether it is proper to have a eompany poliey that any employee
who provides false information to the employeras part ofthe 1-9 proeess will be terminated. As
noted aboye, the INA prohibits employers from treating employees differently in, ínter alía, firing
based on their citizenship status, immigration status, or national origino Id. § 1324b(a)(1). A poliey
that on its faee or in applieation distinguishes between a eertain form of dishonesty (Le., false
information on the Form 1-9) from every other form of dishonesty (e.g., false information on W-4
forms, employment applieations, resumes, etc.) may violate the anti-diserimination provision ofthe
INA, ifbased on an intent to diseriminate on the basis of citizenship status, immigration status, or
national origino
Finally, your third question asks whether it is proper to allow eontinued employment for work
authorized employees who previously provided false information on the Form 1-9, while terminating
employees for other dishonesty. As noted aboye, § 1324b requires that employees be treated the
same regardless of eitizenship status, immigration status, or national origino
1 hope this information is helpful to yOU. 	Should you have any further questions, please
eontaet OSC's employer hotline at (800) 255-7688. Ifyou have any questions regarding worksite
e.nforeement, please eontaet the Department of Homeland Seeurity, Immigration and Customs
Enforeement at (866) 347-2423.
Sineerely,
Katherine A. Bal 	n
Deputy Special Counsel