The U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently issued two Technical Assistance Letters (TAL) that provide guidance on the Immigration and Nationality Act’s (INA) anti-discrimination provision and its applicability in situations involving the use of the E-Verify program and internal I-9 audits.

On August 24, 2015, the OSC responded to a request for guidance about whether a staffing company that was not enrolled in E-Verify could use the program selectively in order to fulfill a request from a client.  Specifically, the question was whether selective use of E-Verify in this context would violate the anti-discrimination provision of the INA (8 U.S.C. § 1324b).  The OSC noted that section 1324b prohibits four types of conduct: discrimination based on citizenship or immigration status; discrimination based on national origin; unfair practices related to verification of documents relating to employment eligibility; and retaliation for asserting rights under the anti-discrimination provision.

The OSC began by pointing to the resources at U.S. Citizenship and Immigration Services (USCIS), which administers the program and noted that both the E-Verify program’s terms and conditions and the INA’s anti-discrimination provision prohibit the selective use of E-Verify based upon an employee’s citizenship status or national origin.  Further, the OSC cautioned against the selective use of E-Verify in response to client requests, noting that such selective use could create the appearance of discrimination.  The OSC was clear, however, that selective use of E-Verify “wholly unrelated” to citizenship status or national origin would “likely not” violate the INA’s anti-discrimination provision.

In accordance with this OSC guidance, employers are advised to never use E-Verify selectively, even if it relates to a legitimate business need, as affected employees could file discrimination claims with the OSC. The OSC generally investigates all such claims of employer discrimination involving E-Verify.  Convincing OSC that an employer’s selective use of E-Verify was in no way discriminatory is time consuming, fact based, and invasive for an employer.

In a second TAL, issued on October 23, 2015, the OSC provided guidance to a question concerning the permissibility of an employer’s requests to employees, following an internal I-9 audit, for alternative documentation to establish employment eligibility where the employees’ Permanent Resident Cards (Forms I-551) raised doubts concerning their validity.  Furthermore, the requestor asked OSC whether the fact that the two employees in question shared the same national origin could run afoul of INA §1324b and result in discrimination complaints under the provision.  The requestor also asked whether the requestor’s law firm had an obligation to “train” the client with respect to evaluating the validity of employee documents.  The OSC directed the requestor to Immigration and Customs Enforcement on this question.

After invoking the prohibitions in INA §1324b, the OSC stated that when conducting an internal I-9 audit, the employer should conduct the audit in a consistent manner and must not treat employees differently based on national origin or citizenship status.  An employer must not base the selection of I-9 forms, or the level of scrutiny applied, on national origin or citizenship status.  The OSC further advised that where an employer identifies documentation that raises questions, the employer may, without violating the anti-discrimination provisions of the INA, request alternative documentation from the employee.  The employer must not, however, request specific alternative documents from the employee.  Rather, the employer should permit the employee to present alternative documents that are allowable for purposes of proving employment eligibility.

Taken together, the two OSC TALs reflect the basic principle that when examining the employment eligibility of individuals, equal, objective, and consistent application of both pre and post-employment verification mechanisms is essential.  The OSC makes clear that in either context, taking employment verification-related actions that are based upon an individual’s citizenship status or national origin, or which could create the appearance of being based upon those factors, must be avoided.