The Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices issued a new technical assistance letter, posted to their website Jan. 13, which updates a letter issued last October regarding internal audits of I-9 employment eligibility verification forms.

The updated letter maintains the OSC’s advice that any internal audit should be conducted consistently, treating similarly situated employees similarly. Employees shouldn’t be treated differently based on citizenship or immigration status or national origin, the letter states, further articulating that “employers should apply the same level of scrutiny to Form I-9 documentation and not apply different levels of scrutiny based on citizenship, immigration status, or national origin.”

In the letter, the OSC directs employers to recent guidance jointly issued by the DOJ and Immigration and Customs Enforcement on how to conduct internal I-9 audits and avoid discrimination charges.  That guidance, the OSC said, “reminds employers that they “are required to accept original Form I-9 documentation that reasonably appears to be genuine and to relate to 1he individual presenting the documentation.” and advises that employers “should recognize that it may not be able to definitely determine the genuineness of Form I-9 documentation based on photocopies of the documentation” .  The guidance goes on to specifically state that employers “should not request documentation from an employee solely because photocopies of the documents are unclear”.

However, the guidance does indicate that where the employer determines, based on the photocopy, that a document does not appear genuine or to reasonably relate to the employee, it should address that concern with the employee and “provide the employee with the opportunity to choose a different document to present from the Lists of Acceptable Documents”.

In a change from prior advice, the letter goes on to state that, “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.”

USDOJ OSC IRUEP Letter of January 7, 2016 may be found here.

Joint USCIS and USDOJ OSC IRUEP Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits may be found here.

Alka Bahal has extensive experience in conducting internal I-9 audits for employers of all sizes. Our audit protocol is, and remains, in accordance with USCIS and DOJ’s updated guidance. Although employers are welcome to conduct their own internal audits, we strongly encourage the use of experienced counsel, given the delicate balance between assuring I-9 documentation compliance and avoiding national origin and discrimination prohibitions.   Additionally, when choosing Alka Bahal and her team for I-9 audit assistance, employers benefit from the vast experience and knowledge gained from conducting numerous prior audits, in addition to the protections afforded by attorney-client privilege (something not available if a non-lawyer vendor is used).

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.