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OSC TAL Discusses Employer’s Over-Documentation of Employees

AILA Doc. No. 14080540

A 7/30/14 Technical Assistance Letter (TAL) from Office of Special Counsel with guidance on how to proceed when an employer discovers it accepted more documentation than necessary for Form I-9 purposes.

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U.S. Department of Justice Civil Rights Division

Office ofSpecial Counselfor Immigration-Related Unfair Employment Practices- NYA

950 Penmylvania Ave, NW

Washington, DC 20530

Main (202) 616-5594

Fax (202) 6/6-5509

JUly 30, 2014

Kristen Roy

Legrand

60 Woodlawn StTeet West Hartford, CT 06110

Dear Ms. Roy:

Thank you for contacting the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). This is in response to your e-mail dated June 24, 2014, in which you request guidance for how to proceed after discovering that your company accepted more

documentation than necessary for Form I-9 purposes "in a few cases." In your email, you explain that your company made this discovery after an internal review of the company's Forms I-9. You also state that your company was advised by another agency to inquire with our office about compliance with the anti-discrimination provision of the Immigration and Nationality Act (INA), including whether "to retain or destroy excess documentation."

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) investigates and resolves charges of national origin and citizenship status discrimination in hiring, firing or recruiting or referring for a fee; discriminatory documentary practices in the employment eligibility verification (Form I-9 and E-Verify) process; and retaliation under the anti-discrimination provision of the INA, 8 U.S.C. § 1324b. OSC cannot provide an advisory opinion on any specific case or set of facts. However, we can provide general information on the INA's anti-discrimination provision and the Form I-9 process.

Please note that we are not aware of any publicly available guidance issued by any

agency recommending steps an employer should take if it accepted too many documents during the Form I-9 process. However, an employer may violate the anti-discrimination provision of the INA if it requests more or different docun1ents 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. If an employer requests more than one List A or a combination of one List B document and one List C document, a violation of the anti-discrimination provision of the INA will depend upon 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. Furthermore, while an employer should correct its practices upon learning that it may have violated the anti-discrimination provision of the INA, an employee who believes that he or she was the victim of discriminatory Form I-9 practices, has up to 180 days from the date of the

discriminatory practice to file a timely charge with om office. We encourage you to visit our

website (www.justice.gov/crt/about/osc) or to contact our toll-free employer hotline (1-800-255- 8155 or TTY 1-800-237-2515) if you would like to learn about resources available to assist your human resources staff in complying with the anti-discrimination provision going forward, such as tlu·ough free webinar training by our office or distribution of educational materials to your

Sincerely,

Alberto Ruisanchez Deputy Special Counsel