On October 23, the U.S. Department of Justice’s (DOJ) Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) issued a technical assistance letter (TAL) in response to an employer’s request regarding an employer’s potential liability if the employer requested additional documentation to verify an employee’s identify and ability to work in the U.S. following an internal audit of its Form I-9’s. While the employer’s counsel believed that requesting the additional documentation was appropriate to satisfy the employer’s immigration compliance obligations, it was worried that the employer would be opening the door to possible discrimination claims.

In its TAL, DOJ acknowledged that such a request could result in a discrimination claim, but also explained that the request, if done properly, was not discriminatory. DOJ reasoned that as long as the employer conducted the audit in a consistent manner (i.e. by treating similarly-situated employees in a similar manner and not differently based on citizenship status or national origin); and applied the same level of scrutiny to all Form I-9 documentation regardless of citizenship status or national origin, “the request for alternative documentation is unlikely to violate the anti-discrimination provision.” Additionally, if the employer is requesting alternative documentation, the employer (as during the initial I-9 process) should NOT request specific documents. The employer, however, may advise the employee that the particular document previously presented and called into question by the internal audit may not be used again for Form I-9 purposes and that the employee should choose alternative documents from List A, or List B and List C.