The U.S. Department of Justice (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the antidiscrimination provision of the Immigration and Nationality Act (INA). On July 30, it issued a technical assistance letter (TAL) that addressed an employer’s request for guidance on how to proceed after an internal audit revealed it had accepted more documentation than necessary for Form I-9 purposes. While the DOJ was unable to give guidance on whether to retain or destroy the excess documentation, it did provide general information on the immigration law’s antidiscrimination provision and the Form I-9 process.
As discussed in our August 14, 2014 article, “I-9 Completion: Beware of Discrimination”, the OSC explains that an employer may violate the antidiscrimination provision if it requests more or different documents or rejects reasonably genuine-looking documents on the basis of citizenship or immigration status, or on the basis of national origin during the Form I-9 process. However, the OSC notes, where an employer requests more than one List A or a combination of one List B and one List C document, a violation of the antidiscrimination provisions depends on whether the employer made any of those requests because of an employee’s citizenship or immigration status OR because of an employee’s national origin. Further, the OSC TAL pointed out that, while the employer should correct its practices upon learning that it may have violated the antidiscrimination provision, an employee who believes he or she was the victim of discriminatory Form I-9 practices must file a discrimination charge with the OSC within 180 days from the date of the discriminatory practice.
Notably, the OSC did not directly state what corrective steps the employer should take where there is over documentation in a Form I-9 file discovered as a result of an internal audit, the TAL implies, that employers taking corrective actions determine the “reason” for the over documentation, to ensure there was no discriminatory intent by the employer or violations of the antidiscrimination provisions during the Form I-9 completion process. Thus, while the OSC investigates and resolves charges of national origin and citizenship status discrimination in hiring, firing, or recruiting or referring for a fee, the OSC cannot provide an advisory opinion on any specific case or set of facts.
Please note, no U.S. government agency issues publicly available guidance that recommends steps an employer should take if it accepted too many documents during the Form I-9 process. However, we can assist with internal audits, address any irregularities or possible violations revealed, and recommend corrective steps to take to avoid any antidiscrimination claims or fines.