The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued an updated Technical Assistance Letter (TAL) on Jan. 7, 2016, relating to an employer’s internal Form I-9 audit procedures. The TAL addresses: 1) an employer’s obligation to prevent discrimination in compliance with the anti-discrimination provision of the Immigration Reform and Control Act (IRCA); and 2) the steps an employer should take with respect to Permanent Residence Cards when the documentation presented by an employee does not appear to be facially valid. This updated TAL supersedes the TAL issued on Oct. 23, 2015.
The OSC makes it clear that an employer, when conducting an internal audit, must conduct the audit in a consistent manner, apply the same levels of scrutiny to all Form I-9 documentation, treat all employees the same, and apply the same level of scrutiny based on citizenship, immigration status, or national origin. The OSC further states that an employer may violate the IRCA’s anti-discrimination provision if it subjects certain documentation to additional scrutiny based on citizenship, immigration status, or national origin.
With respect to an employer questioning the authenticity of Form I-9 documentation provided by an employee during the Form I-9 compliance process, particularly Permanent Residence Cards, OSC refers to the intra-agency initiative between the Department of Justice’s (DOJ) Civil Rights Division and the Department of Homeland Security’s (DHS’) U.S. Immigration and Customs Enforcement (ICE). The agencies collaborated to provide guidance in December 2015 to address common questions that arise when employers conduct internal reviews of their Forms I-9. The DOJ/DHS guidance reminds employers that they “are required to accept original Form I-9 documentation that reasonably appears to be genuine and to relate to the individual presenting the documentation.” In addition, when conducting an internal audit, “employer[s] should not request documentation from an employee solely because photocopies of the documents are unclear.” Instead, employers should address this concern with an employee and give the employee an opportunity to provide a different document from the List of Acceptable Documents. The employer should not ask for alternative documentation if the employee presents the original version of the same documentation initially presented and if, upon inspection, the employer determines that the document appears genuine and reasonably related to the employee. Should the original document be unavailable or it is determined by the employer to not be genuine after inspection, then the employer may not ask for specific alternative documents and the employee should be given the opportunity to provide a different document from the List of Acceptable Documents.
Although this OSC guidance was provided in the context of Form I-9 audits, employers are advised to keep these policies in mind when initially completing Form I-9s for new employees at the time of hire.