Avoid Discrimination in the Form I-9 and E-Verify Processes: Updated OSC Flyer

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), in the Civil Rights Division, is responsible for enforcing the anti-discrimination provisions of the Immigration and Nationality Act (INA). OSC conducts an outreach and education program aimed at educating employers, potential victims of discrimination, and the general public about their rights and responsibilities under the INA’s anti-discrimination and employer sanctions provisions.

OSC recently published an updated flyer recommending steps to avoid discrimination in the Form I-9 and E-Verify processes. The interplay between I-9 compliance and anti-discrimination regulations presents a major dilemma for employers.  The updated OSC flyer is helpful in guiding employers through the steps to ensure I-9 compliance while also avoiding discrimination. Below is a summary of the OSC-recommended steps and some commentary from the author of this article:

  • Proving immigration status in Section 1

Employees do not need to prove their specific immigration status held which they attest to in Section 1.  In other words, employers must not insist on seeing evidence of the person’s particular immigration status – for example, asking a U.S. Citizen to present a U.S. passport, or asking an alien authorized to work to present an Employment Authorization Document (EAD).  Instead, employers must allow the employee to choose acceptable documents from List A-C.

  • Aliens authorized to work indefinitely

Certain aliens authorized to work are not required to put an expiration date in Section 1, because their employment authorization is indefinite. In this situation, the employee may note “N/A” in the expiration field even though their EAD bears an expiration date.

  • SSN not required in Section 1

Employees are not required to write their social security numbers (SSN) in Section 1, unless the employer is enrolled in E-Verify. Even if the employer uses E-Verify, the employee may begin work for pay, even if the employee does not yet have a SSN, as long as he or she has presented proper documents A-C and they have been documented in Section 2.

  • Acceptable documents from List A-C

To satisfy Section 2, employees must be allowed to present any document or combination of documents from the List A-C of Acceptable Documents in the I-9 instructions. Employees can choose to present either any unexpired List A document, or any unexpired List B document together with any unexpired List C document. Employers must not ask for specific documents – for example, “green card” or “work permit.”

If an employee presents too many or too few documents, refer the employee to the List of Acceptable Documents so that the employee can select which documents to present or not present. Do not complete Section 2 with more or fewer documents than needed.

  • Acceptable receipts

A receipt for an application to replace a lost, damaged or stolen List A, List B, or List C document is valid for 90 days from the date the employee presents it for the Form I-9. The arrival portion of the Form I-94 containing a temporary I-551 stamp and photograph is valid until the end of the stamp’s expiration date, or if no expiration date, one year from date of issue. The departure portion of the Form I-94 with an unexpired refugee admission stamp is an acceptable receipt valid for 90 days from hire.

  • Unfamiliar documentation or older version

If the documentation is valid, do not reject it only because it appears unfamiliar or is an older version.  For example, do not reject valid List C documents, such as naturalization certificates, Forms I-94 with asylum stamps, or unexpired Reentry Permits. This does not mean that if the document is not on the Acceptable Documents List, the employer must accept it. In this instance, the OSC warning is against rejecting documents that are on the list only because the employer does not encounter them often.

  • Watch out for automatically extended EADs

Some individuals, such as those with Temporary Protected Status (TPS), may have EADs that appear expired on the face of the cards, but the EADs may have been “automatically extended” and are still valid.  Do not ask employees with automatically extended EADs to present additional documentation during the extension period. For information, read our recent article relating to the handling of automatically-extended EADs.

  • Documents with upcoming expiration dates

Do not reject valid documentation because of an upcoming expiration date. As a side note, not included in the OSC flyer, there are certain situations in which an employer might be justified in refusing to hire an individual with an expiring work authorization. For example, refusing to hire individuals not protected by citizenship discrimination, such as F-1 students with EADs based on Optional Practical Training (OPT), will likely not raise discrimination concerns, as stated by the OSC in a recent Technical Assistance Letter (TAL). For more information, read our article relating to a TAL concerning refusing to hire F-1 students with expiring EADs.

  •  Completing Section 3

Section 3 is appropriate when reverification is required or, in certain cases, when an employee is rehired.  Section 3 may also be utilized for name changes.

U.S. Citizens and certain non-U.S. Citizens may not be reverified. For example, a permanent resident card that bears an expiration date in the future must not be reverified. Similarly, a U.S. passport that bears an expiration date in the future must not be reverified. Additionally, List B documents that expire in the future, such as driver’s licenses and other documents that prove identity, must also not be reverified.

Employees may choose to present which documents from the List A-C to present for the reverification process. The flyer states that a List B document is not needed. However, note that in certain situation involving re-hires for employers enrolled in E-Verify, when the employee was previously not entered into E-Verify and that employee’s identity document is now expired, a new unexpired List B document to show identity may be required. For more information, read our article regarding I-9 Verification Updates, which discusses the need for unexpired identity documents in this situation.

  •  E-Verify Tips:
  1.  Be consistent and do not discriminate based on citizenship, immigration status, or national origin.
  2. Do not prescreen applicants by creating a case in E-Verify for them before hire.
  3. Do not request that an employee present additional or specific documents if the employee presented sufficient documentation under E-Verify rules for Section 2 of the Form I-9.
  4. Do not create E-Verify cases for employees who are waiting to receive their SSNs and for employees who present certain receipts for Section 2 documents. Despite the E-Verify delay, allow them to work for pay similar to employees whose E-Verify cases were created within the typical three-day period.
  5. Do not create E-Verify cases for employees when performing Section 3 reverification.
  6. Notify every employee who receives a Tentative Nonconfirmation (TNC) and do not make assumptions about employment authorization based on the TNC issuance.
  7. If an employee receives a TNC, let the employee decide whether to “contest” or “not contest.”
  8. If an employee contests a TNC, do not fire, suspend, modify a work schedule, delay job placement or otherwise take any action adverse against the employee just because the employee received a TNC.
  9. If you are enrolled in E-Verify as a federal contractor, follow all rules for when and how to create cases for current employees.

You can read the full flyer here.

It is imperative for U.S. employers to be aware of the latest trends and requirements relating to I-9 compliance. Our firm provides a variety of services related to I-9 compliance, including voluntary audits and training, as well as representation in connection with enforcement audits by ICE. We have represented and advised employers in multiple industries with relation to I-9 compliance, including hospitality, restaurant, landscaping, production, retail, staffing, manufacturing, higher education, service provider and financial industries.

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