Below is a current listing of technical assistance letters written by the Office of Special Counsel (OSC) in response to some real-world immigration-related issues being faced by private employers, government agencies, and staffing companies. These letters address issues such as pre-screening applicants for English-only job requirements, requiring graduation from a university or college in the United States, and use of e-Verify among many other issues.
To view the text of these letters, each of which is only 2 to 3 pages in length, go to http://www.justice.gov/crt/about/osc/htm/techletters.php.
Fiscal year covers the period of October 1 thru September 30.
Fiscal Year 2013
Non-Discriminatory Practices During the Form I-9 Verification and Re-Verification Process
August 13, 2013 (General contractor requiring subcontractor’s employees to present original I-9 documentation)
November 1, 2012 (whether employer may ask for different documents if document presented does not appear to be genuine)
Citizenship Status Discrimination
August 6, 2013 (requiring a university degree from a U.S. university to be selected for employment)
Other
May 30, 2013 (whether employer may share its I-9 Forms with private vendor that performs check-issuing service and needs to verify identity of employees)
April 9, 2013 (whether a federal agency can prefer a U.S. citizen over equally qualified non-citizen)
April 4, 2013 (whether it is a discriminatory practice to change an applicant’s last name when submitting name for criminal background check purposes)
February 25, 2013 (national origin and citizenship status discrimination in hiring in connection with ITAR and EAR)
November 1, 2012 (constructive knowledge and dishonesty policy)
Fiscal Year 2012
Non-Discriminatory Practices During the Form I-9 Verification and Re-Verification Process
January 5, 2012 (requesting documentation outside of the list of acceptable documents)
December 28, 2011 (using two different employment eligibility re-verification processes depending on employee’s change of citizenship status)
December 1, 2011 (when employer may lawfully re-verify or request additional documentation from an employee)
Pre-Employment Inquiries and Pre-Screening
August 21, 2012 (whether software company can request visa status from jobseekers and provide visa information to employers inquiring about applicant’s legal right to work in U.S.)
May 18, 2012 (whether employer faces liability when refusing to accept valid EAD from applicant based on actual knowledge that an individual is not work-authorized)
May 2, 2012 (how staffing companies should respond to employers who make discriminatory staffing requests based on citizenship status)
March 28, 2012 (whether employer can base hiring decisions on ability to read, write and speak English)
February 6, 2012 (using acceptable language for job postings in which employer can only consider U.S. citizens)
December 22, 2011 (whether employer may narrow the list of accepted documents in order to prove U.S. citizenship of applicant)
Social Security Number No-Match
October 14, 2011 (whether employer may re-verify employee’s work authorization when a discrepancy between employee’s name and Social Security number arises)
October 26, 2011 (what actions employers must take when employee’s Social Security card, originally thought to be valid, later appears fraudulent)
Other
September 10, 2012 (Deferred Action for Childhood Arrivals as related to discrimination concerns)
August 21, 2012 (whether employer may require Social Security numbers for an “electronic payroll system”, even though Social Security numbers are not required for employment eligibility)
May 30, 2012 (how to determine whether lawful permanent residents are protected against citizenship status discrimination)
Fiscal Year 2011
Non-Discriminatory Practices During the Form I-9 Verification and Re-Verification Process
August 18, 2011 (whether new employees, previously employed by company’s subcontractor, must complete new Forms I-9)
August 2, 2011 (whether employer may retain copies of E-Verify photo matching tool documents, but not retain copies of other I-9 documents)
July 1, 2011 (whether employer may shorten list of acceptable documents in Section 2 of the Form I-9 based on the employee’s citizenship status)
March 18, 2011 (whether electronic employment verification processing software can request information about employee’s EAD or F-1 or J-1 status)
January 24, 2011 (whether employer discriminates by requesting documents beyond Form I-9 requirements to prove job creation as EB-5 Visa holder)
October 6, 2010 (discussing I-9 documentation used to comply with the International Traffic in Arms Regulations (ITAR) and related questions)
October 4, 2010 (discriminatory I-9 practices with regard to invalid Puerto Rican birth certificates)
Pre-Employment Inquiries and Pre-Screening
December 22, 2010 (automated recruitment software inquiring about applicant’s legal right to work in the U.S.)
Social Security Number No-Match
August 29, 2011 (whether Social Security Number Verification Service (SSNVS) can be used to verify employment eligibility)
July 1, 2011 (permissible employer action if employee is not able to resolve Social Security Number no-match within a reasonable period of time)
April 27, 2011 (question about OSC’s “no-match” guidance and permissible employer action when employee with no-match provides new Social Security number)
E-Verify
August 19, 2011 (whether a union can encourage or require members to use E-Verify Self-check)
July 22, 2011 (whether contractor may ask for E-Verify related documentation from employees of subcontractor)
Other
July 26, 2011 (whether employer can legally terminate employee who lied on application regarding future need of employer sponsorship)
July 22, 2011 (whether contractor may ask for E-Verify related documentation from employees of subcontractor)
December 22, 2010 (legality of subcontractors furnishing its I-9 forms and their attachments to general contractors)
Fiscal Year 2010
Non-Discriminatory Practices During the Form I-9 Verification and Re-Verification Process
June 22, 2010 (whether employers must re-verify seasonal employees who are laid off and return to work the next season)
June 10, 2010 (whether an employee’s Form I-9 should be maintained in an employee’s file)
June 10, 2010 (internal I-9 audit and honesty policy)
March 29, 2010 (acceptable documents for Form I-9)
March 24, 2010 (when Form I-9 can be completed)
March 23, 2010 (employer responsibilities with respect to employee who present temporary evidence of employment authorization in the Form I-9 process)
February 3, 2010 (employer anti-discrimination obligations when responding to a “Notice of Suspect Documents” issued by ICE)
December 23, 2009 (whether completion of new I-9 Form for LPR cancels employer’s obligation to re-verify employment authorization where LPR originally presented foreign passport and Machine Readable Immigrant Visa (MRIV))
December 4, 2009 (standards for conducting internal audit in a non-discriminatory fashion)
Pre-Employment Inquiries and Pre-Screening
September 27, 2010 (employer advertising that it will not employ persons who require visa sponsorship)
August 19, 2010 (contractor requiring assigned employees of subcontractor to be U.S. citizens)
July 2, 2010 (whether an employer may terminate a non-immigrant visa holder who lies on the application about authorization to work in the U.S. on an unrestricted basis)
June 29, 2010 (pre-hire questions that make clear that an employer will not hire applicants who require sponsorship for nonimmigrant visas as well as applicants holding an “open market Employment Authorization Document”)
December 29, 2009 (employer’s ability to implement an “Identity Theft I.D. Quiz” for prospective or newly hired employees to prevent identity fraud)
Social Security Number No-Match
June 10, 2010 (use of SSNVS to verify Social Security number)
March 25, 2010 (state agency notification to employer of Social Security number mismatch for employee)
March 3, 2010 (city and county notification to employer of Social Security number mismatch for employees)
E-Verify
April 21, 2010 (whether employer can terminate employee who fails to take action following receipt of E-Verify TNC)
March 17, 2010 (when a federal contractor may rely on previously completed Form I-9 to run E-Verify query)
Other
June 10, 2010 (internal I-9 audit and honesty policy)
July 22, 2010 (whether employers should provide employees’ Forms I-9 to state welfare agencies that request them)
April 29, 2010 (honesty policy)
December 1, 2009 (whether employers are required to post OSC’s “You Have the Right to Work” poster at work sites)