Potential I-9 Violations When Subcontractor Requests Documents

The U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently addressed questions related to efforts to verify the employment authorization of contractors. The issue is whether it is appropriate for a general contractor to request employment authorization documentation from a subcontractor’s employees.

Background: Question and Concerns

The subcontractor explained to the OSC that a general contractor was asking the subcontractor’s employees for employment verification documentation. Specifically, at the time the workers were to start on the project, the contractor required that they present the same documents presented to their employer, the subcontractor, during the form I-9 verification process.

As explained in the OCS’s technical assistance letter (TAL), this practice raises discrimination concerns. Employers who work through mid-vendors or subcontractors should understand the issues in this TAL to avoid potential violations of the Immigration and Nationality Act (INA).

Overview of the I-9 Form Process and May 2013 Version

As emphasized in the MurthyDotCom NewsBrief, ICE Continues to Target Employers for I-9 Audits (19.August.2011), employers must take the I-9 process seriously. Under the Immigration Reform and Control Act of 1986 (IRCA), employers are required to have each employee complete section 1 of the I-9 at the time of hire, and the employer must complete section 2 of the I-9, using employee-provided documents, by the employee’s third day of employment. The U.S. Citizenship and Immigration Services (USCIS) issued a new version of the I-9 effective May 7, 2013, as explained in USCIS Releases Revised Employment Eligibility Verification Form (I-9) (19.March.2013), also available on MurthyDotCom.

General Contractor Required Subcontractor’s Employees to Provide Docs

In its request to the OSC, the subcontractor explained that the general contractor was demanding to see the original identity and work authorization documents previously presented to the subcontractor during the I-9 process. If the subcontracted worker refused to provide the requested documents or offered different documents from those listed in their I-9, the individual would not be allowed to work on the project.

Role of the OSC With Regard to Document Abuse

The OSC enforces the anti-discrimination provisions in the INA. These provisions prohibit four types of discrimination related to employment: citizenship or immigration status discrimination; national origin discrimination; unfair documentary practices during the I-9 process (also called document abuse); and retaliation for filing a discrimination charge, assisting in an investigation, or asserting rights under this anti-discrimination provision. Thus, the OSC can investigate claims of discrimination in the hiring and I-9 employment authorization process.

OSC Guidance: Contractor’s Request Raises Potential Discrimination Concerns

While noting that it does not give advice on particular cases, the OSC stated in its TAL that the general contractor’s practices, as described above, raise potential discrimination concerns. One problem was that the general contractor does not have the right to request to review employee identity and employment authorization documents a second time. These employees had already provided documents to their employer during their I-9 process, as required.

Next, there was a passage of time between the I-9 completion and the request by the general contractor. Over the course of months and even years, documents utilized at the time of I-9 completion may have become unavailable or invalid. Some documents could be unavailable or invalid due to departures from the United States, expiration and subsequent approvals of permanent residence (green cards), or naturalization to U.S. citizenship. It is illegal to refuse to allow employees to work based on their failure to provide exactly the same documents that were provided previously.

If an employee is barred from working on a project due to these illegal demands, the individual may be able to file a discrimination claim with the OSC, alleging discrimination based on citizenship or immigration status.

Conclusion

This example shows the complicated nature of the issues related to the seemingly simple two-page I-9 form. Employers need to be aware of demands placed on their workers to ensure they are not mistreated or discriminated against at client locations. It is also important that employers audit their I-9 files to ensure that they are complying with all rules and regulations with regards to all of their employees, not only their foreign-born or non-U.S. citizen employees. Employers who require assistance in auditing their I-9 files or in reviewing their related practices are encouraged to schedule a consultation with a Murthy Law Firm attorney.

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