The Department of Justice (DOJ), through its Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), recently issued a Technical Assistance Letter in response to a written request by a subcontractor as to whether a general contractor is permitted to require the subcontractor’s employees to present original I-9 documentation, provided to the subcontractor during the I-9 verification process, before commencing work on the project. According to OSC, this practice may constitute both document abuse and citizenship or immigration status discrimination, both of which are prohibited by the Immigration and Nationality Act’s (INA) anti-discrimination provision.
The law requires employers to verify the employment eligibility of all new employees at the time of hire using the Form I-9, Employment Eligibility Verification. Employers must have new employees complete Section 1 of the form at the time of hire and must then review original documentation of identity and employment eligibility, presented by the employee within three business days of the commencement of employment, in order to complete Section 2 of the form. OSC elaborated on the problems that might ensue should a general contractor require a subcontractor’s employees to produce such documents a second time. In particular, given the likely interval between the time the employee was initially hired by the subcontractor and the point at which the general contractor requests to examine the employee’s I-9 documentation, the employee may no longer have the document(s) originally presented for several reasons, including: the document has expired and the employee now has a newer version of the originally-presented document; the employee has a different document due to adjustment of immigration status (i.e., from a lawful permanent resident to a U.S. citizen) and has forfeited his or her originally-presented document; or the document has been lost, stolen, or misplaced.
“To the extent such individuals are barred from employment,” notes OSC in its letter, “they may perceive that the general contractor and/or subcontractor has discriminated against them based on their citizenship or immigration status. Because the proposed practice relates to the original I-9 verification process, such employees might also allege discriminatory I-9 practices in violation of the anti-discrimination provision.”