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I-9 E-Verify Immigration Compliance

OSC Issues Flyer on Employers Avoiding Discrimination

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By Bruce Buchanan, Siskind Susser

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The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, which is within the Department of Justice, has issued an updated flyer entitled “How Employers Can Avoid Discrimination in the Form I-9 and E-Verify Processes.”

There are some helpful points in the flyer for employers, which one may already know and refreshing or one might learn for the first time. Some of these helpful points are:

  • Employees do not need to prove the citizenship status they attest to in Section 1. Do not ask any employee for proof of immigration or citizenship status, such as asking an employee who marks “U.S. citizen” to present a naturalization certificate or U.S. passport.


  • Employees are not required to write their Social Security numbers (SSN) in Section 1 unless you use E-Verify.


  • To satisfy Section 2, employees must be allowed to present any documentation of their choice from the Lists of Acceptable Documents. All employees can choose to present either any unexpired List A document, or any unexpired List B document together with any unexpired List C document.


  • Do not ask any employee to present specific documents.


  • Some individuals, such as those with Temporary Protected Status (TPS), may have EADs that appear expired on the face of the cards, but the EADs may have been “automatically extended” and are still valid. Do not ask employees with automatically extended EADs to present additional documentation during the extension period.


  • U.S. citizens and some non-U.S. citizens should not be reverified. For example, do not reverify an LPR who presented a Permanent Resident Card that expired after initial verification.


  • Do not create E-Verify cases for employees who are waiting to receive their SSNs and for employees who present certain receipts for Section 2 documents. Despite the E-Verify delay, allow them to work for pay similar to employees whose E-Verify cases were created within the typical three-day period.


  • Do not reject valid documentation just because it is unfamiliar, or because it is an older version.


  • If an employee contests a TNC, do not fire, suspend, modify a work schedule, delay job placement or otherwise take any action adverse against the employee just because the employee received a TNC.

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