By Bruce Buchanan, Sebelist Buchanan Law

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On January 7, 2016, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), in response to an attorney’s request for guidance, issued a Technical Assistance Letter (TAL), on how to advise a client following an internal audit of the client's I-9 forms. The attorney raised two questions – (1) what steps should your client take concerning Permanent Resident Cards that the client doubts the veracity of; and (2) whether the attorney’s firm has an "obligation to train" their client in "what to look for in a valid green card"?

The anti-discrimination provision of the Immigration and Nationality Act ("INA") prohibits four types of employment-related conduct: (1) citizenship or immigration status discrimination in hiring, firing, or recruiting for a fee; (2) national origin discrimination in hiring, firing, or recruiting for a fee; (3) “document abuse"; and (4) retaliation for filing a charge, assisting in an investigation, or asserting rights under this provision.

OSC issued a TAL on October 23, 2015 concerning a similar question on internal I-9 audits. Thereafter, on December 14, 2015, OSC and Immigration and Customs Enforcement (ICE) issued guidance to assist employers conduct internal audits without violating the employer sanctions and anti-discrimination provisions of the INA. Thus, in light of recently issued guidance, the January 7, 2016 TAL supersedes the October 23, 2015 TAL. As OSC explained, to prevent discrimination in violation of the anti-discrimination provision, an employer conducting an internal I-9 form audit should conduct the audit in a consistent manner, treating similarly-situated employees in a similar manner, and should not treat employees differently based on citizenship, immigration status, or national origin. Plus, employers should apply the same level of scrutiny to I-9 documentation and should not apply different levels of scrutiny based on citizenship, immigration status, or national origin.

In answer to the question regarding Permanent Resident Cards that an employer doubts the veracity of, the OSC referred to the December 14, 2015 guidance. The 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." (Available at http://www.justice.gov/crt/file/798276/download). However, in the context of an internal audit, an employer "should recognize that it may not be able to definitely determine the genuineness of I-9 form documentation based on photocopies of the documentation" and "[a]n employer may not conclude, without foundation, that a photocopy of an employee's I-9 form documentation is not genuine or does not relate to the individual."


Furthermore, the guidance stated if an employer conducting an internal I-9 form audit concludes, based on a photocopy, that a document does not appear genuine or to reasonably relate to an individual, the employer "should address its concern with the employee and provide the employee with the opportunity to choose a different document to present from the Lists of Acceptable Documents." However, the employee also has the option to give the employer the originally presented document to resolve the employer's concerns, and the employer is not prohibited from reviewing the original document and determining that it appears to be genuine and to reasonably relate to the employee. If after reviewing the originally presented document, an employer determines that it appears genuine and reasonably relates to the employee, then the employer must accept that document and not request additional documents. If the originally presented document is unavailable or if, after reviewing the original document, the employer concludes that it does not appear to be genuine or to reasonably relate to the individual, the employer should provide the employee with an opportunity to choose a different document to present from the Lists of Acceptable Documents.


Concerning the employer’s second question - whether the attorney’s firm is obligated to train your client on "what to look for in a valid green card", OSC directed them to ICE.

As this TAL and the December 14, 2015 guidance demonstrate, the OSC is strongly encouraging employers to conduct internal I-9 audits and to do so properly. I encourage employers to conduct such internal I-9 audits and, in my opinion, it is very important for employers to do so under the guidance of an immigration compliance attorney or have an immigration compliance attorney conduct the audit. It will be well worth the cost of attorney’s fees.
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