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OSC Responds to Query on Steps to Follow After Internal I-9 Audit


The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to an attorney who asked how to advise her client following an internal audit of the client’s I-9 employment authorization verification forms. The attorney asked specifically what steps the client should take with respect to permanent resident cards (Forms I-551) that the attorney found doubtful, and whether the attorney was obligated to train the client on what to look for in a valid green card or whether such training would be outside the scope of what the employer should be trained to do, since that could take the employer beyond the “reasonable person” standard.

OSC noted that it cannot give an advisory opinion on any particular set of facts, only general guidelines. OSC said that to prevent discrimination, an employer or representative conducting an internal I-9 audit should conduct it in a consistent manner, treating similarly situated employees in a similar manner. Employees should not be treated differently based on citizenship, immigration status, or national origin. For example, an employer should apply the same level of scrutiny to all employees’ I-9 documentation and not single out for review the I-9 forms of employees from a particular country or immigration status.

In response to the attorney’s specific question about doubtful green cards, OSC referred to joint guidance recently issued by OSC and U.S. Immigration and Customs Enforcement (ICE), which reminds employers that they are required to accept original I-9 documentation that “reasonably appears to be genuine and to relate to the individual presenting the documentation.” If an employer conducting an internal I-9 audit concludes, based on a photocopy, that the document does not appear genuine or reasonably related to the employee, the employer should address its concern with the employee and provide the employee an opportunity to choose a different document to present from the I-9’s Lists of

Acceptable Documents. However, OSC noted, the employee can also give the employer the originally presented document and, if the employer determines that it appears genuine and reasonably related to the employee, the employer must accept that document and not request additional documents. If the employer, on the other hand, determines that the original document does not appear genuine or reasonably related to the employee, “the employer should provide the employee with an opportunity to choose a different document to present from the Lists of Acceptable Documents.”

Regarding whether the attorney’s firm must train her client on “what to look for in a valid green card,” OSC directed her to ICE guidance.

See also: The joint OSC-ICE guidance referenced in the response, “Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits”

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