On October 23, the U.S. Department of Justice’s (DOJ) Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) issued atechnical 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. In sum, if questions regarding how to balance the interest of complying with your Form I-9 requirements and the anti-discrimination provision of the Immigration and Nationality Act arise, employers should immediately seek counsel.

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