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DOJ Addresses the Anti-Discrimination Provision in Connection with I-9 Compliance

Maria del Carmen Ramos

Maria del Carmen Ramos

On July 30, 2014, the U.S. Department of Justice (DOJ) Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) issued a technical assistance letter (TAL) in response to an employer’s request for guidance in how to address the instance where the employer had accepted more documents than necessary during the Form I-9 verification process. (See U.S. Department of Justice.)  In its request for assistance, the employer specifically inquired whether it should “retain or destroy excess documentation.”

Unsurprisingly, but worthy of note, is the fact that the OSC failed to provide any guidance in connection with what corrective steps an employer should take when it discovers that it accepted more documents that necessary during the Form I-9 process. In its TAL, OSC specifically stated that it “cannot provide an advisory opinion on any specific case or set of facts.”

So, what’s an employer to do? Employers are certainly in a pickle, because, to date, no U.S. government agency has issued any guidance regarding what corrective action an employer should take if it discovers after the fact that it accepted too many documents during the Form I-9 process. Moreover, the lack of guidance from OSC highlights the importance of balancing the competing interests of properly documenting an employee’s identify and eligibility to work and not discriminating on the basis of citizenship or immigration status or national origin. If an employer discovers that it did over-document for Form I-9 purposes, it should examine the reason(s) for the over-documentation. The employer needs to review its Form I-9 process to ensure that there was no discriminatory intent by the employer or violations of the anti-discrimination provisions of the Immigration and Nationality Act (INA). While the employer may not be able to ensure perfection in every single case, it can certainly stay ahead of the curve by being proactive.

Finally, if questions regarding how to balance the interest of properly completing the Form I-9 and the anti-discrimination provision of the INA arise, employers should immediately seek counsel. Our firm is available to assist employers with internal audits, immigration compliance questions in connection with any irregularities or possible violations revealed, and recommend corrective action to avoid any antidiscrimination claims or fines.

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