A. The Office of Special Counsel for Immigration
Related Unfair Employment Practices (OSC) in the Department's
Civil Rights Division protects U.S. citizens and individuals
from employment discrimination based upon citizenship or
immigration status and national origin, unfair documentary
practices when verifying the employment eligibility of employees,
and retaliation. Individuals discriminated against may file
charges with OSC and be awarded back pay and reinstatement,
among other remedies.
In addition, OSC conducts an outreach and education program
aimed at educating employers, potential victims of discrimination,
and the general public about their rights and responsibilities
under the INA's anti-discrimination and employer sanctions
provisions. OSC, in partnership with the Equal Employment
Opportunity Commission, has conducted workshops throughout
the United States for employers to increase understanding
of employer sanctions and the protections against discrimination.
To leverage its outreach activity, OSC also awards grants
to organizations for the purpose of conducting public education
programs about the rights of employees and the responsibilities
of employers under the INA's anti-discrimination provision.
OSC's grantees are state and local fair employment practices
agencies and community-based, faith-based, labor, business
and immigrant service organizations. Grantees translate
OSC materials, work with local organizations to reach new
populations, hold seminars and meetings, distribute OSC
materials, develop educational packets, update current legal
manuals to include changes in the immigration law, disseminate
information through the world wide web, and refer charges
of discrimination to OSC. OSC provides technical assistance,
speakers, and outreach materials to the grantees.
In an effort to increase accessibility to its services and
resources, OSC has signed and/or reinvigorated its memoranda
of understanding with various state and local human rights
agencies, where individuals can now obtain OSC information
and file charges of immigration related employment discrimination.
For further information about the Office of Special Counsel,
or to file a charge of discrimination:
Call:
1-800-255-7688 (worker
hotline) or 1-800-237-2515
(TDD)
1-800-255-8155 (employer
hotline) or 1-800-362-2735
(TDD)
1-202-616-5594 (direct
office line) or 1-202-616-5525
(TDD)
or write:
U.S. Department of Justice
Civil Rights Division
Office of Special Counsel for
Immigration-Related Unfair Employment Practices
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
The Office of Special Counsel has multilingual staff and
attorneys ready to assist workers, employers and the public.
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Q. What is the Immigration and Nationality Act (INA)?
A. The Immigration and Nationality Act (INA) is
the federal law governing almost all immigration matters.
It prohibits employers from knowingly hiring undocumented
workers and requires employers to verify their employees'
work eligibility as specified on the I-9 Form. In turn,
employees must present documentation to their employers
to establish both identity and employment eligibility. There
are several combinations of legally acceptable documents
from which they can choose. The I-9 Form must be completed
for every employee, regardless of national origin, and whether
or not a U.S. citizen. An employer's failure to verify the
identity and employment eligibility of new employees by
completing the I-9 Form violates federal immigration law.
Congress established the Office of Special Counsel for Immigration
Related Unfair Employment Practices (OSC) to enforce the
antidiscrimination provisions of the INA and to educate
the public about immigration-related employment discrimination.
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Q. What type of discrimination is
prohibited by the INA?
A. The Immigration and Nationality
Act (INA) prohibits:
- Citizenship or immigration status discrimination with
respect to hiring, firing, and recruitment or referral for
a fee, by employers with four or more employees, subject
to certain exceptions. Employers may not treat individuals
differently because they are, or are not, U.S. citizens
or work authorized individuals. U. S. citizens, recent permanent
residents, temporary residents, asylees, and refugees are
protected from citizenship status discrimination. Exceptions:
permanent residents who do not apply for naturalization
within six months of eligibility are not protected from
citizenship status discrimination. Citizenship status discrimination
which is otherwise required to comply with law, regulation,
executive order, or government contract is permissible by
law.
- National origin discrimination with respect to hiring,
firing, and recruitment or referral for a fee, by employers
with more than three and fewer than 15 employees. Employers
may not treat individuals differently because of their place
of birth, country of origin, ancestry, native language,
accent or because they are perceived as looking or sounding
"foreign." U.S. citizens and all work authorized
individuals are protected from national origin discrimination.
The Equal Employment Opportunity Commission has national
origin jurisdiction over employers with 15 or more employees.
- Unfair documentary practices related to verifying the
employment eligibility of employees. Employers may not,
on the basis of citizenship status or national origin, request
more or different documents than are required to verify
employment eligibility and identity, reject reasonably genuine-looking
documents or specify certain documents over others. U.S.
citizens and all work authorized immigrants are protected
from document abuse.
- Retaliation. Individuals who file charges with OSC, who
cooperate with an OSC investigation, who contest action
that may constitute unfair documentary practices or discrimination
based upon citizenship status or national origin, or who
otherwise assert their rights under the INA's anti-discrimination
provision are protected from retaliation.
Q. How can employers verify their employees'
employment eligibility in a non-discriminatory manner?
A. Employers can demonstrate compliance with the
law by following the verification (I-9 Form) requirements
and treating all new employees the same. This includes the
following steps:
Hire only individuals who are authorized to work.
Note that a "U.S. citizens-only" hiring policy
is discriminatory except under limited circumstances. An
employer may require U.S. citizenship for a particular job
only if required to do so by federal, state, or local law
or regulation, or by government contract.
Complete the I-9 Form for all new hires. This form
gives employers a way to establish that the individuals
they hire are authorized to work in the United States. Employers
must permit employees to present any document or combination
of documents acceptable by law. Employers cannot prefer
one document over others for purposes of completing the
I-9 Form, and cannot require non-citizens to show particular
documents issued by the Department of Homeland Security
(or the former Immigration and Naturalization Service (INS)).
Authorized aliens do not all carry the same documents. For
example, not all aliens who are authorized to work are issued
"green cards." As long as the documents are allowed
by law and appear to be genuine on their face and to relate
to the person, they should be accepted. Not to do so may
constitute unlawful discrimination. For the list of documents
that establish identity and work eligibility, please see
the List of Acceptable Documents.
Q. How can I contact the Office
of Special Counsel?
A. You may write, call, or email the Office of Special Counsel
(OSC). For immediate assistance, we recommend that you call
one of the numbers listed below.
Send charges and written inquiries to:
U.S. Department of
Justice
Civil Rights Division
Office of Special Counsel for
Immigration-Related Unfair Employment Practices
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
or Call:
1-800-255-7688 (worker hotline) or 1-800-237-2515 (TDD)
1-800-255-8155 (employer hotline) or 1-800-362-2735
(TDD)
1-202-616-5594 (direct office line) or 1-202-616-5525
(TDD)
For questions about Title VII, please call the Equal Employment
Opportunity Commission at 1-
800-669-4000 (toll free) or 202-275-7518 (TDD), or visit its
website at http://www.eeoc.gov.
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Q. What documents may employees
show employers to establish identity and employment eligibility?
A. The documents identified below are
acceptable to establish identity and/or employment eligibility.
Please call OSC for special rules that apply in certain
situations, including receipts, rehiring former employees,
workers with temporary protected status (TPS), documentation
for individuals with disabilities, and additional acceptable
documents.
List A
Documents that Establish Both Identity
and Employment Eligibility.
U.S. Passport (unexpired or expired)
Unexpired foreign passport that contains a temporary
I-551 stamp
Alien Registration Receipt Card or Permanent Resident
Card (INS Form I-551)
Unexpired Employment Authorization Card that contains
a photograph (Form I-766, Form I-688, Form I-688A, Form
I-688B)
For non-immigrants authorized to work for a specific
employer: an unexpired foreign passport with an Arrival-Departure
Record, Form I-94, indicating a nonimmigrant classification
that enables the alien to work with a specific employer
incident to his or her nonimmigrant status until the expiration
date specified on the form bearing an unexpired endorsement
of the individual's nonimmigrant status.
OR
List B
Documents that Establish Identity
Driver's license or ID card issued by a state or
outlying possession of the United States provided it contains
a photograph or information such as name, date of birth,
gender, height, eye color, and address
ID card issued by federal, state or local government
agencies or entities provided it contains a photograph or
information such as name, date of birth, gender, height,
eye color, and address
School ID card with a photograph
Voter's registration card
U.S. Military card or draft record
Military dependent's ID card
U.S. Coast Guard Merchant Mariner Card
Native American tribal document
Driver's license issued by a Canadian government
authority
For persons under age 18 who are unable to present a document
listed above:
School record or report card
Clinic, doctor, or hospital record
Day-care or nursery school record.
AND
List C
Documents that Establish Employment
Eligibility
U.S. Social Security card issued by the Social Security
Administration (other than a card stating it is not valid
for employment or valid only with INS work authorization)
Certification of Birth Abroad issued by the Department
of State (Form FS-545 or Form DS-1350)
Original or certified copy of a birth certificate
issued by a state, county, municipal authority or outlying
possession of the United States bearing an official seal
Native American tribal document
U.S. Citizen ID Card (Form I-197)
ID Card for use of Resident Citizen in the United
States (Form I-179)
Unexpired employment authorization document issued
by the Department of Homeland Security (DHS) (other than
those listed under List A), including:
(1) a Form I-94 identifying the holder as an asylee (by
stating "asylum", "asylee" or appropriate
provision of law), or
(2) other documentation issued by DHS (or the former Immigration
and Naturalization Service (INS)) that identifies the holder
as an asylee, lawful permanent resident, refugee (except
for the Form I-94 identifying the holder as a refugee, which
is considered a receipt only), or as possessing other status
authorized to work in the United States incident to status.
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Q. What is the receipt rule?
A. Under the receipt rule, an individual may present a "receipt"
in lieu of a listed document to complete section 2 of the
I-9 Form. The receipt is valid for a temporary period. There
are three different documents that qualify as receipts under
the rule.
The first type of receipt that an employee may present is
a receipt for the application for a replacement document when
the document has been lost, stolen, or damaged. The receipt
is valid for 90 days, after which the individual must present
the replacement document to complete the I-9 Form. Note that
this rule does not apply to individuals who present receipts
for new documents following the expiration of their previously
held document.
The second type of receipt that an employee may present is
a Form I-94 containing a temporary I-551 stamp and a photograph
of the individual, which is considered a receipt for Form
I-551. The individual must present the Form I-551 by the expiration
date of the temporary I-551 stamp, or within one year from
the date of issuance of the Form I-94 if the I-551 stamp does
not contain an expiration date.
The third type of receipt that an employee may present is
a Form I-94 containing an unexpired refugee admission stamp.
This is considered a receipt for either an Employment Authorization
Document (i.e., Form I-766 or I-688B) or a combination of
a Social Security card and List B document. The employee must
present acceptable documentation to complete the I-9 Form
within 90 days after the date of hire, or in the case of reverification,
the date employment authorization expires.
Note: DHS regulations provide that if it does not adjudicate
an application for employment authorization within 90 days,
it will grant an employment authorization document valid for
a period not to exceed 240 days. To receive an interim employment
authorization document, the individual should contact his
or her local office of United States Citizenship and Immigration
Services (USCIS).
Q. How can employers get up-to-date
and accurate information?
A. OSC has a toll-free automated telephone hotline for employers:
1-800-255-8155 (1-800-362-2735 (TDD). Information is available
24 hours a day and features easy-to-follow prompts to receive
prerecorded answers to common questions asked by employers.
The hotline offers callers taped information on four key
subjects:
- Tips on avoiding immigration-related discrimination when
completing the I-9 Form;
- Information on how to avoid immigration-related discrimination
in hiring practices;
- The penalties for employment discrimination; and
- The acceptable documents that establish identity and work
eligibility.
Callers who need additional information will be able to
speak with an OSC representative from 9 a.m. to 5 p.m.,
Eastern Standard Time/Eastern Daylight Time. The hotline's
Fax-Back option provides callers with helpful written information.
Callers can key in their fax machine number, and within
minutes will receive by fax a copy of the list of documents
acceptable for establishing identity and work eligibility
and information on the INA's anti-discrimination provisions.
OSC updates the telephone system's recorded and Fax-Back
information to reflect changes to the list of acceptable
documents.
For more information, please contact:
U.S. Department of Justice
Civil Rights Division
Office of Special Counsel for
Immigration-Related Unfair Employment Practices
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
General Information:
1-800-255-7688
1-800-237-2515 (TDD for hearing impaired)
Automated Employer Hotline: 1-800-255-8155
1-800-362-2735 (TDD for hearing impaired)
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Q. What questions are frequently
asked on OSC's employer hotline?
1. Do I need to reverify lawful permanent residents who produce
a "green card" with a future expiration date?
No. Lawful permanent residents who produce an unexpired Permanent
Resident Card (Form I-551 or "green card") should
not be reverified, even if the Form I-551 lists a future expiration
date.
2. If an employee records an A Number on the I-9 Form, do
I need to see a document with that number?
No. If an employee records an Alien Number or Admission Number
in Section 1 of the I-9 Form, an employer should not ask to
see a document with that number or otherwise specify what
documentation an employee may present. During both initial
verification and reverification, an employee may choose what
documentation to present from the I-9 Form lists of acceptable
documents.
3. My employee's DHS-issued employment authorization document
expired and the employee now wants to show me a Social Security
card. Do I need to see a current DHS document?
No. During both initial verification and reverification, an
employee may choose what documentation to present from the
I-9 Form lists of acceptable documents. If an employee presents
an unrestricted Social Security card upon reverification,
the employee does not also need to present a current DHS document.
However, if an employee presents a "restricted"
Social Security card upon reverification, the employer must
reject the restricted Social Security card since it is not
an acceptable I-9 document and ask the employee to choose
different documentation from List A or List C of the I-9 Form.
A restricted Social Security card may state "not valid
for employment" or "valid for work only with INS
authorization."
4. Can you "run" this number (typically an A Number
or Social Security Number) and tell me whether it's good?
No. The Office of Special Counsel does not perform that function.
Further, DHS can not "run" a number, unless the
employer has "strong and articulable" reasons to
believe documentation may not be valid, or unless an employer
is participating in E-Verify. The Social Security Administration
and the DHS operate E-Verify which provides employers a way
to confirm the employment eligibility of their newly hired
employees. For more information about this program, you may
call the DHS at 1-888-464-4218 or visit https://www.vis-dhs.com/employerregistration/
5. My employee presented me with a receipt. Can I accept
it?
It depends. A receipt must be accepted if it is for an application
for a replacement document when the original document was
lost, stolen, or damaged (in this case, the actual document
must be presented to complete the I-9 Form within 90 days).
The arrival portion of a Form I-94 containing an unexpired
temporary I-551 stamp and a photograph of the bearer must
be accepted as a receipt for Form I-551. The employee must
then submit the Form I-551 by the expiration date listed on
the temporary I-551 stamp or within one year from the date
of issuance of the Form I-94 when the I-551 stamp does not
list an expiration date.
The departure portion of a Form I-94 containing a refugee
admission stamp is a receipt for an employment authorization
document (or a Social Security card) and List B document.
Original documents must be presented to complete the I-9 Form
within 90 days after the date of hire, or in the case of reverification,
the date employment authorization expires.
6. May I accept a DHS Form I-94 indicating someone has been
granted asylum as a list C document?
Yes. An I-94 Form indicating the person has been granted
asylum may be accepted as a list C document. The I-94 does
not need to be attached to a passport. An I-94 indicating
the person has been admitted as a refugee may be accepted
as a receipt (see question 5). Both refugees and asylees are
work-authorized incident to their status and are protected
individuals.
7. May I ask to see a Social Security card for payroll (and
not I-9) purposes?
Yes. However, we recommend that you keep such requests separate
from the I-9 process.
8. What is a "no match" letter?
In a "no match" letter, SSA informs you that the
name and SSN you reported for an employee do not match SSA's
records. The letter explains the reasons for keeping accurate
records and lists the SSNs that do not match SSA's records.
It also cautions you not to take any adverse employment action
based on the letter against employees whose names and SSNs
do not match with information in SSA's records. A no match
does not mean that an individual is undocumented.
9. If an employee's name and SSN don't match SSA's records,
doesn't that mean the employee is not authorized to work?
No. Just because there is a mismatch between your records
and SSA's records, you should not assume that the employee
lacks work authorization. There are many reasons for a mismatch
to occur, including:
1. A name change (e.g., due to marriage, divorce or other
reasons) after the SSN was issued;
2. A typing or printing error; and
3. An error based on cultural differences in how surnames
are used.
You should not use the mismatch letter by itself as the reason
for taking any adverse employment action against any employee.
Doing so may put you in violation of the antidiscrimination
provision of the immigration laws, the equal employment opportunity
laws, or the labor laws. The General Counsel's office of the
former INS, and OSC, have opinion letters that may assist
you on this issue. Please call OSC for more information.
10. An employee has presented me with a document that looks
"fake". Can I refuse to accept it?
You may refuse to accept a document only if it does not reasonably
appear to be genuine or to relate to the person. Employers
are not expected to be document experts and should not refuse
to accept documents based on superficial irregularities. However,
if the document does not reasonably appear to be genuine or
to relate to the individual, the employer may ask the employee
for additional documentation and should not employ the person
if he or she is unable to comply.
11. My company is participating in E-Verify. May we terminate
or suspend an employee if we receive a tentative nonconfirmation
of the employee's information?
No. A tentative nonconfirmation does not mean the employee
is not authorized to work. The employee must be allowed eight
work days to contact SSA or DHS to resolve the situation.
If the employee does so, an employer may not terminate the
employee based on the tentative nonconfirmation of status
and must await a final resolution from E-Verify, even if such
final resolution takes longer than eight work days.
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Q. What are the 10 steps to take
to avoid immigration related employment discrimination?
A.
1. Treat all people the same when announcing a job, taking
applications, interviewing, offering a job, verifying eligibility
to work, and in hiring and firing.
2. Accept documentation presented by an employee if it establishes
identity and employment eligibility; is included in the list
of acceptable documents; and reasonably appears to be genuine
and to relate to the person.
3. Accept documents that appear to be genuine. You are not
expected to be a document expert, and establishing the authenticity
of a document is not your responsibility.
4. Avoid "citizen-only" or "permanent resident-only"
hiring policies unless required by law, regulation or government
contract. In most cases, it is illegal to require job applicants
to be U.S. citizens or have a particular immigration status.
5. Give out the same job information over the telephone to
all callers, and use the same application form for all applicants.
6. Base all decisions about firing on job performance and/or
behavior, not on the appearance, accent, name, or citizenship
status of your employees.
7. Complete the I-9 Form and keep it on file for at least
3 years from the date of employment or for 1 year after the
employee leaves the job, whichever is later. This means that
you must keep I-9s on file for all current employees. You
must also make the forms available to government inspectors
upon request.
8. On the I-9 Form, verify that you have seen documents establishing
identity and work authorization for all employees hired after
November 6, 1986, including U.S. citizens.
9. Remember that many work authorization documents (I-9 Form
lists A and C) must be renewed. On the expiration date, you
must reverify employment authorization and record the new
evidence of continued work authorization on the I-9 Form.
You must accept any valid document your employee chooses to
present, whether or not it is the same document provided initially.
Individuals may present an unrestricted Social Security card
to establish continuing employment eligibility.
Note:
Permanent resident cards should not be
reverified
Identity documents should not be reverified
10. Be aware that U.S. citizenship, or nationality, belongs
not only to persons born in the United States but also to
all individuals born to a U.S. citizen, and those born in
Puerto Rico, Guam, the Virgin Islands, the Commonwealth of
Northern Mariana Islands, American Samoa, and Swains Island.
Citizenship is granted to legal immigrants after they complete
the naturalization process.
For more information, call the OSC Employer Hotline at
1-800-255-8155 or OSC Worker Hotline: 1-800-255-7688
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