The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment practices just recently issued two interesting Technical Assistance Letters to answer common questions from employers.

State-issued Driver Authorization Cards driver_card.jpg

Several questions were asked pertaining to Driver Authorization/Driver Privilege Cards, which were described as “cards issued by states to individuals who are unable to document proof of lawful status," and who are often not authorized to work in the United States. It was further explained that "different States currently or may in the future have different formats for these documents and/or annotations that specifically reference whether such documents are acceptable for federal identification purposes on the face of the documents."

Specific employer questions were:

1. Do such cards constitute acceptable List B documents to evidence identity during the Form I-9 completion process?

2. May an employer employ an individual who presents this type of card given that such documents are statistically issued to predominantly undocumented individuals?

3. May an employer employing an individual who has shown this type of card for I-9 or other purposes be deemed to have knowingly employed an individual who is not authorized to work in the United States?

OSC’s answer:
“According to the Form I-9 Lists of Acceptable Documents, a driver's license or ID card issued by a State or outlying possession of the United States [satisfies the criteria to be considered a List B document] provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address."

To that extent, employers are cautioned against concluding that an individual is not legally authorized to work in the United States based on a perception that a List B document is "statistically issued to predominantly undocumented individuals." An employment-authorized individual whose List B document is rejected because an employer made this assumption may allege discrimination on the basis of national origin or citizenship status in violation of the anti-discrimination provision of the INA by filing a discrimination charge with OSC.

Other questions from employers pen.jpg

4. In the context of an internal Form I-9 audit, may an employer request the employment eligibility documentation presented at the time the Form I-9 was completed, if the copies of the documentation "are unclear and prevent [the] forensic evaluation of their genuineness?"

5. May the employer, alternatively, request current employment authorization documentation if the documentation presented at the time the Form I-9 was completed is no longer available?

OSC’s answer: “The employer may have a significant need to ensure an authorized workforce in a sale to another company or to avoid losing valued employees in an ICE audit. As a threshold matter, the standard for reviewing Form I-9 documentation during an internal audit does not change from the standard applied during the initial employment eligibility verification process. An employer is required to accept Form I-9 documentation that reasonably appears to be genuine and to relate to the individual presenting the documentation." OSC noted that this standard does not require an employer to utilize forensic techniques, and that different levels of scrutiny based on the type of document or the citizenship status or national origin of the employee may violate the anti-discrimination provision.

Further, as employers are not required to photocopy I-9 documentation (except for certain documents when an employer uses E-Verify), OSC suggests an employer should not conclude, solely based on unclear photocopies of Form I-9 documentation, that an employee's Form I-9 documentation is not genuine or does not relate to the individual. Requesting such documents on the basis of citizenship status or national origin may also violate the anti-discrimination provision of the INA.

Copies of the OSC Technical Assistance Letters are available here and here.