On January 8, 2015, the U.S. Department of Justice (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 for guidance. The employer sought guidance on how to address the instance where an employee admitted after the fact that the documents presented during the Form I-9 process were not genuine and whether the employer would face any liability for discrimination if it chose to terminate the employee.
Not surprisingly, OSC refused to issue an advisory opinion. But it did provide general guidelines regarding compliance with the anti-discrimination provision of the Immigration & Nationality Act (INA), 8 U.S.C. § 1324b . The TAL stated, in instances where an employer has properly completed these steps, and subsequently an employee comes forward with authentic work and identify documents once he/she has legalized his/her immigration status, the USCIS Handbook for Employers advises the employer to complete a new Form I-9 with the original hire date and new documentation, and attach it to the old Form I-9 with an explanation. The employer is not required to terminate the employee.
Yet, if the employer rejected valid work-authorization or terminated the employee, such actions could result in a violation of the anti-discrimination provision of the INA on the grounds of citizenship and/or national origin discrimination and document abuse (employers cannot reject valid Form I-9 documentation). OSC opined that the employer would then be tasked with providing a legitimate non-discriminatory reason for termination.
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