By Bruce Buchanan, Siskind Susser

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The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a Technical Assistance Letter (TAL) on October 23, 2015 advising that where the employer has doubts about the validity of the documentation found in an internal I-9 audit and requests the employees in question for further documentation, this is likely not discrimination.

In this case, an attorney requested guidance on how to advise an employer-client following an internal audit of the client's I-9 forms. In the proposed situation, the attorney seeks guidance on what steps the employer-client should take with respect to Permanent Resident Cards that the Employer doubt the veracity of. The attorney proposes to advise the employer-client to meet with the employees whose documentation the Employer believes is doubtful and request the employees to present different documentation. The question raised by this scenario is whether this is discrimination because the affected employees share the same national origin.

To prevent discrimination in violation of the anti-discrimination provision, an employer, hopefully under the guidance of an immigration attorney, conducting an internal I-9 audit should conduct the audit in a consistent manner and should not treat employees differently based on citizenship status or national origin. The OSC stated an example of discrimination is when an employer bases its selection of which I-9 forms to review on employees' citizenship status or national origin. In addition, the OSC stated employers should apply the same level of scrutiny to Form I-9 documentation and not apply different levels of scrutiny based on citizenship status or national origin.

If, after following these principles during an audit, the OSC concluded an employer identifies documentation that does not reasonably appear to be genuine or relate to the employee and requests that the employee present alternative documentation, the request for alternative documentation is unlikely to violate the anti-discrimination provision. The OSC stated the employer may state that the particular document called into question by the internal audit may not be used again for I-9 purposes. According to the OSC, if the employer requests alternative documentation, the employer should not request specific documents. The employee should be permitted to present his choice of other documents, as long as they are acceptable for employment eligibility verification purposes.

Although the OSC’s TALs do not carry the weight of a Judge’s decision, they do indicate the OSC’s thinking on a particular matter. These TALs can be valuable resources in advising clients on issues of discrimination.