The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices issued a Technical Assistance letter on May 30, 2013, stating an E-Verify user should not make its I-9 forms available for inspection by a private vendor, who issues paychecks to the E-Verify user's employees. The vendor and its bank wanted to be permitted to inspect the I-9 forms to verify the identity of the employees for whom the vendor was issuing the paychecks.

Pursuant to 8 U.S.C. § 1324a(b)(5), I-9 forms "may not be used for purposes other than for enforcement of the Immigration and Nationality Act" (Act or INA) and certain provisions of federal criminal law. In OSC's opinion, sharing I-9 forms "with a private entity in order to have that entity verify employees' identities for payroll purposes is not a use related to enforcement of the Act or one of the specified criminal laws."

Furthermore, the third party vendor questioning the sufficiency of documents presented to the employer, which the vendor would have not seen in their original form, is a problem. To the extent the employer requests additional  or different documents from an employee based on the vendor's scrutiny of Forms 1-9, the request could be perceived by the employee to constitute document abuse in violation ofthe anti­-discrimination provision of the INA. 

Moreover, under the E-Verify MOU, an employer must "use the information it receives from SSA or DHS pursuant to E-Verify and this MOU only to confirm the employment eligibility of employees as
authorized by this MOU." Further, an employer is required to ensure that the information is "not disseminated to any person other than employees of the Employer who are authorized to perform the Employer's responsibilities under this MOU, except for such dissemination as may be authorized in advance by SSA or DHS for legitimate purposes."

This Technical Assistance letter is helpful in that some general contractors have begun to request the I-9 forms of their sub-contractors' employees. This letter should be cited as a reason it cannot be done. Alternatively, a sub-contractor can offer a cerification on your employees' I-9 forms.