Frequently Asked Questions (FAQs)

Please note that as of January 18, 2017, the Office of Special Counsel for Immigration-Related Unfair Employment Practices has been renamed the Immigrant and Employee Rights Section (IER).

Unfair Documentary Practices

Reverification Issues

Temporary Protected Status ("TPS")

E-Verify

Social Security Name/Number Issues

Citizenship Status Discrimination

National Origin Discrimination


Q. What is the Immigrant and Employee Rights Section (IER)?

A. The Immigrant and Employee Rights Section (IER) of the Justice Department's Civil Rights Division enforces the anti-discrimination provision of the Immigration and Nationality Act (INA). This law protects work-authorized individuals from employment discrimination in hiring, firing, and recruitment or referral for a fee based upon citizenship, immigration status, and national origin; unfair documentary practices when verifying the employment eligibility of employees (Form I-9 and E-Verify); and retaliation. Individuals who believe they have been discriminated against may file charges with IER and may be entitled to receive back pay and reinstatement, among other remedies.

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Q. What type of employer conduct is prohibited under the INA's anti-discrimination provision?

A. The Immigration and Nationality Act's (INA) anti-discrimination provision, codified at 8 U.S.C. § 1324b, prohibits four types of unfair employment practices:

  • Citizenship or immigration status discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with four or more workers, subject to certain exceptions. Employers may not treat individuals differently because of their citizenship or immigration status. U.S. citizens, U.S. nationals, recent permanent residents, asylees, and refugees are protected from citizenship status discrimination. Lawful permanent residents who do not apply for naturalization within six months of eligibility and certain other non-U.S. citizen categories are not protected from citizenship status discrimination. An employer may restrict hiring to U.S. citizens only when required to do so by law, regulation, executive order, or government contract.
  • National origin discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with 4 to 14 workers. 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." All work-authorized individuals are protected from national origin discrimination. The Equal Employment Opportunity Commission has jurisdiction over national origin discrimination claims against employers with 15 or more workers.
  • Unfair documentary practices related to verifying the employment eligibility of employees during the I-9 and E-Verify processes. Employers may not, on the basis of citizenship, immigration 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. All work-authorized individuals are protected from unfair documentary practices.
  • Intimidation or Retaliation. Employers may not intimidate, threaten, coerce, or retaliate against individuals who file charges with IER, who cooperate with an IER investigation, who contest an 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.

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Q. How do I file a charge with IER?

A. Individuals who believe they have suffered discrimination may file a charge of discrimination with IER by completing and submitting a charge form electronically online, or emailing, mailing or faxing the IER charge form to:

Immigrant and Employee Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW (NYA)
Washington, DC 20530
Fax: 202-616-5509
Website: www.justice.gov/IER
Email: IER@usdoj.gov

Charges should be filed within 180 days of the alleged discrimination or retaliation. More information on filing a charge is available here.

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Q. What happens after a charge is filed?

A. After IER receives a submission that is sufficient to constitute a charge, IER will begin its investigation.  If IER has not filed a complaint with an ALJ within 120 days of receiving a charge, it will send a letter notifying the injured party or authorized representative of their right to file an administrative complaint against the respondent, and indicating whether IER is continuing its investigation.  IER will also notify the respondent of its decision to continue an investigation.  IER may also file a complaint with an ALJ after this 120-day investigatory period.

Once a case is filed, pre-trial matters are generally handled in accordance with the applicable rules of practice and procedure, and involve discovery, depositions, and pleadings. ALJ decisions are directly appealable to the federal circuit courts of appeals. Settlements or successful adjudications may result in civil penalty assessments, back pay awards, hiring orders and the imposition of injunctive relief to end discriminatory practices.

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Q. Can I report a violation of the anti-discrimination provision without filing a charge?

A. Yes. IER has authority to initiate independent investigations based on information developed during individual charge investigations, or information provided by other government agencies and the general public. Independent investigations typically involve discriminatory policies, practices, or processes that potentially affect many employees or applicants. To report a potential violation of the anti-discrimination provision without filing a charge, you may call IER's worker hotline.

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Q. How can I contact IER for assistance or guidance, or to discuss whether I should file a charge of discrimination?

A. To reach IER by telephone:

  • 1-800-255-7688 (worker hotline), or 1-800-237-2515 (TTY)
  • 1-800-255-8155 (employer hotline) or 1-800-237-2515 (TTY)
  • 1-202-616-5594 (direct office line)
  • By e-mail: IER@usdoj.gov

By mail:

  • Civil Rights Division
    U.S. Department of Justice
    Immigrant and Employee Rights Section
    950 Pennsylvania Avenue, NW
    Washington, DC 20530

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Q. How does IER's hotline work?

A. IER has multilingual staff and attorneys ready to assist workers, employers and the public who contact IER through its worker or employer hotline. IER's hotlines provide workers and employers with an opportunity to receive information about the anti-discrimination provision of the INA and to work directly with IER's staff to resolve potential immigration-related employment disputes informally and quickly without contested litigation. Workers and employers are encouraged to call the respective hotlines to seek assistance with immigration-related employment issues. Language interpretation services are available upon request.

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Q. Does IER offer webinars?

A. Yes. IER regularly hosts webinars to educate employers, workers or other members of the public about the protections and obligations under the anti-discrimination provision. Regularly occurring webinars include webinars targeted to: (1) employers, (2) workers and their advocates, (3) Spanish-speaking audiences, and (4) individuals wishing to better understand workers' rights in the I-9 and E-Verify context presented by IER jointly with U.S. Citizenship and Immigration Services. Visit http://www.justice.gov/crt/about/osc/webinars.php to register for one of our free webinars. If you are an organization seeking to educate your staff or your community about the anti-discrimination provision, you may also inquire about scheduling a customized webinar to suit your needs by emailing: IER@usdoj.gov.

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Q. Can an IER staff member speak at my upcoming live presentation?

A. Maybe. IER staff may be available to participate in seminars, conferences, and workshops to educate employers, workers or other members of the public about protections and obligations under the anti-discrimination provision.  Please submit all requests by email to IER@usdoj.gov or call (202) 616-5594 and ask to speak with IER public affairs staff.

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Q. Who is the IER point of contact for inquiries from the media?

A. The Department of Justice's Office of Public Affairs is the principal point of contact for the Department of Justice with the news media. The Office is responsible for ensuring that the public is informed about the Department's activities and about the priorities and policies of the Attorney General and the President with regard to law enforcement and legal affairs. The telephone number for the Office of Public Affairs is (202) 514-2007.

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Unfair Documentary Practices

Q. Which documents may I show my employer to establish my identity and employment eligibility?

A. There are several combinations of legally acceptable documents from which workers can choose. The Form I-9 contains Lists of Acceptable Documents that fall into three categories (see next question for additional information about acceptable documents). A worker is allowed to produce either a single List A document (establishing both identity and employment eligibility), or a combination of two documents, one from List B (establishing identity) and one from List C (establishing employment eligibility). Employers should not specify which documents they will accept from a worker and should not prevent an individual from working because of a document's future expiration date. For further information about acceptable documents, visit the I-9 Central website established by U.S. Citizenship and Immigration Services: www.uscis.gov/I-9Central. For concerns about possible discriminatory practices relating to employment eligibility verification, contact IER.

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Q. If I don't have a document from the Lists of Acceptable Documents, can I show my employer a receipt?

A. Maybe. Under the receipt rule, a worker may present a "receipt" in lieu of a listed document to complete section 2 of the Form I-9 as long as the receipt is an acceptable receipt for I-9 purposes. The receipt is valid for a temporary period. There are three different documents that qualify as acceptable receipts for I-9 purposes.

First, a worker may present 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 worker must present the replacement document to complete the Form I-9.

Second, a worker may present 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 worker 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.

Third, a worker may present a Form I-94 containing an unexpired refugee admission stamp. A refugee may have an electronic or paper Form I-94. If a refugee presents the departure portion of a Form I-94A containing an unexpired refugee admission stamp or a computer-generated printout of Form I-94 with an admission class of "RE", the employer must accept it. This is considered a receipt for a List A document. The worker must present either an Employment Authorization Document (EAD) or a combination of a List B identity document and an unrestricted Social Security card within 90 days after the date of hire, or in the case of reverification, the date employment authorization expires.

If your employer does not accept a valid receipt for I-9 purposes, contact IER for assistance.

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Q. If a worker records a "USCIS" or "Alien" number on the Form I-9, does an employer need to see a document with that number?

A. No. If a worker records a USCIS or Alien Number, or an Admission Number, in Section 1 of the Form I-9, an employer should not ask to see a document with that number or otherwise specify which documentation a worker may present. During both initial verification and reverification, a worker may choose which documentation to present from the I-9 Form Lists of Acceptable Documents. Requesting specific documents based on citizenship, immigration status, or national origin may violate the anti-discrimination provision of the INA.

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Q. My new employer is requiring me to provide an expiration date for my status as a refugee in Section 1 of the Form I-9. Must I provide an expiration date in Section 1?

A. No. Aliens whose employment authorization does not expire, such as refugees, asylees, and certain citizens of the Federated States of Micronesia, the Republic of the Marshall Islands and Palau, should select the "alien authorized to work" field in Section 1 of the Form I-9 and should enter "N/A" on the line calling for an expiration date. In addition, if a refugee or asylee chooses to show a driver's license and unrestricted Social Security card for Section 2, the employer should not reverify that worker's employment authorization. If you are an asylee or refugee and your employer is requiring that you provide an expiration date in Section 1, contact IER.

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Q. May an employer ask an employee to present a Social Security card for payroll (and not I-9) purposes?

A. Yes, however, employers are advised to separate all non-I-9 requests for documents from the I-9 process, ideally by communicating to all workers the basis for each document request, e.g., whether a document is being requested for payroll purposes or for another purpose. Employers should be aware that workers who believe the request was made for employment eligibility verification purposes may allege discrimination in violation of the anti-discrimination provision.

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Q. Does an employer need to see a worker's Social Security card in order to make sure that the Social Security number completed in Section 1 is correct?

A. No. Recording a Social Security number (SSN) in Section 1 of the Form I-9 is optional unless the employer uses E-Verify. If an employer uses E-Verify, a worker must fill in his/her SSN, but an employer should not ask to review the card to verify it for Section 1 purposes. Note that if a worker has not yet been issued an SSN at the time that he or she completes the Form I-9 and the employer uses E-Verify, the employer using E-Verify should postpone creating the E-Verify case until the worker is issued an SSN. As long as the worker has otherwise completed the Form I-9, the employer should allow the worker to continue working while awaiting the SSN. For further guidance, contact IER.

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Q. My employer asked me to verify my employment eligibility by showing a document issued by the Department of Homeland Security because I am not a U.S. citizen. Is that permissible?

A. No. For employment eligibility verification, a worker must be allowed to choose which documents to show from the Form I-9 Lists of Acceptable Documents. If the documentation reasonably appears to be genuine and to relate to the worker, the employer must accept it. An employer may be violating the anti-discrimination provision of the INA if the employer requires a worker to show specific documents or more documents than required based on the worker's citizenship status or national origin. If your employer has demanded a specific document from you for I-9 purposes, contact IER.

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Q. A job applicant presented an Employment Authorization Document that expires next month. As an employer, I don't want to train the worker without an assurance that the worker will still be employment-authorized in the future. May an employer reject the applicant for employment due to the uncertainty of continued employment authorization?

A. No. You cannot refuse to hire an individual solely because that individual's employment authorization document will expire in the future. The existence of a future expiration date does not preclude continuous employment authorization for a worker and does not mean that subsequent employment authorization will not be granted. In addition, consideration of a future employment authorization expiration date in determining whether an individual is qualified for a particular job may constitute an unfair immigration-related employment practice in violation of the anti-discrimination provision of the INA.

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Q. A worker has presented an employer with a document that looks fake. Can an employer refuse to accept it without violating the anti-discrimination provision?

A. Yes. You should refuse to accept a document if it does not reasonably appear to be genuine or to relate to the person. However, you should not apply different levels of scrutiny to documents based on a worker's citizenship, immigration status, or national origin. In this instance, the employer may ask the worker for different documentation if the request is based on the fact that the first document presented does not reasonably appear to be genuine. If a document is rejected, and the worker is not offered an opportunity to produce a different document, the worker may allege unfair documentary practices. In addition, an employer should not reject a document solely because the employer is unfamiliar with the type of document being presented. For further guidance, contact IER.

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Reverification Issues

Q. A worker's DHS-issued employment authorization document expired and the worker wants to show a Social Security card for reverification. Does the employer need to see a current DHS document?

A. No. For reverification, a worker need only present an unexpired List A or List C document of the worker's choice. Therefore, if a worker presents an unrestricted Social Security card upon reverification, the worker does not need to present a current DHS document even if he or she presented a DHS document for initial employment eligibility verification. However, if a worker presents a "restricted" Social Security card (stating "not valid for employment," "valid for work only with INS authorization," or "valid for work only with DHS authorization"), the employer may not accept the restricted Social Security card since it is not an acceptable I-9 document. In that case, the employer should ask the worker to present another unexpired List A or List C document of the worker's choice. Note that List B documents are not required for reverification. For questions about the acceptability of documents for reverification, contact IER.

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Q. Does an employer need to reverify lawful permanent residents who produce a "green card" with a future expiration date?

A. No. Lawful permanent residents who produce an unexpired Permanent Resident Card (Form I-551 or "green card") should not be re-verified, even if the Form I-551 lists a future expiration date. Reverifying Permanent Resident Cards may constitute a violation of the anti-discrimination provision of the INA. For questions about how to conduct reverification in a nondiscriminatory manner, contact IER.

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Q. If I am a lawful permanent resident, do I need to show my employer a new unexpired Permanent Resident Card when the card expires?

A. No. Employers may not reverify the employment eligibility of a lawful permanent resident who initially presented an unexpired Permanent Resident Card, even when the card expires. If your employer reverifies your employment eligibility after you presented an unexpired Permanent Resident Card, contact IER.

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Temporary Protected Status ("TPS")

Q. I have Temporary Protected Status ("TPS"), and the Department of Homeland Security extended my Employment Authorization Document ("EAD") for six months. My employer insists that I show an unexpired card in order to continue working. Do I need to?

A. No. Employers should not require additional documentation for individuals with TPS when DHS has automatically extended their EADs for six months based on their TPS status. Notices of automatic extensions of EADs for individuals with TPS are published in the Federal Register. Copies of the TPS notice for a worker's country can be obtained from the U.S. Citizenship and Immigration Services website. You should provide your employer with your expired EAD and explain that your EAD has been automatically extended. You can, but are not required to, also show your employer the Federal Register notice to show that your EAD has been automatically extended. The Federal Register notice also includes information for how an employer can note the new expiration date on the Form I-9. If your EAD has been automatically extended because of your TPS status and your employer insists on requiring additional documentation, contact IER.

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E-Verify

Q. When my employer created an E-Verify case with my information, I received a tentative nonconfirmation ("TNC") from the Social Security Administration ("SSA"). My employer told me that I can start working only after I resolve my TNC with SSA. I have work authorization. May my employer impose this requirement?

A. No. An employer must allow a worker to continue working if the worker chooses to contest the TNC for as long as the status in E-Verify remains a TNC. Some SSA TNCs occur when a worker fails to notify SSA of a name or citizenship status change. Employers that allow only some workers to work while resolving a TNC depending upon the worker's citizenship status or national origin may be violating the anti-discrimination provision of the INA. If your employer has not allowed you to work while you are resolving your TNC, contact IER.

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Q. May an employer participating in E-Verify terminate or suspend an employee who decides to contest a tentative nonconfirmation (TNC), based on the TNC?

A. No. A TNC does not necessarily mean the worker is not authorized to work. While a worker is resolving the TNC, an employer may not take adverse action against the worker based on the TNC, including terminating or suspending the worker. The employer must await a final resolution from E-Verify, even if such final resolution takes longer than the typical period. Terminating an individual based on the assumption that he or she is not authorized to work based only on a TNC may violate the anti-discrimination provision of the INA. For more information, including employer best practices on avoiding discrimination in the use of E-Verify, see IER's E-Verify guidance for employers here.

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Social Security Name/Number Issues

Q. If a worker's name and Social Security number don't match the Social Security Administration's (SSA) records, should the employer automatically conclude that the worker is not authorized to work?

A. No. Just because there is a mismatch between a worker's name or Social Security number and another entity's records, including SSA's records, you should not assume that the worker lacks employment authorization. There are many possible reasons for a mismatch, including:

1. An unreported name change (e.g., due to marriage, divorce or other reasons) after the SSN was issued;

2. A typing or printing error by an employer or SSA;

3. Reporting errors by an employer or employee;

4. Identity theft;

5. An error based on hyphenated or multiple surnames; and

6. A change in citizenship status that has not been reported to SSA.

You should not use the mismatch by itself as the reason for taking any adverse employment action against any worker. Doing so may violate the anti-discrimination provision of the INA. For more information, including steps employers can take upon receipt of a Social Security name/number no-match, see IER's guidance for employers on Social Security name/number no-matches here.

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Citizenship Status Discrimination

Q. I was rejected for a job because I am not a U.S. citizen. Is this citizenship status discrimination?

A. Likely yes. Employers cannot limit job applicants or hires to U.S. citizens unless they are required to do so by federal, state, or local laws or federal contracts that require specific positions to be filled only by U.S. citizens. If a job applicant is discouraged or rejected from employment based on citizenship status, the employer may be committing citizenship status discrimination in violation of the anti-discrimination provision of the INA. If your application has been rejected because you are not a U.S. citizen, contact IER.

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Q. Should an employer ask job applicants what their immigration status is?

A. No. It is not advisable to ask job applicants about their specific status because an unsuccessful applicant may believe that he or she was not hired based on his or her citizenship or immigration status. However, employers may ask whether an applicant is currently authorized to work in the United States or will require sponsorship for employment. Under the anti-discrimination provision, nonimmigrant visa holders may not claim a violation of the law for failure to hire based on their need for sponsorship.

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National Origin Discrimination

Q. I applied to a small restaurant, and it refused to hire me due to my national origin. Is that employment discrimination?

A. Yes. Failure to hire an individual based on his or her national origin may violate the anti-discrimination provision of the INA if the employer employs four to 14 employees, or may violate Title VII of the Civil Rights Act (enforced by the Equal Employment Opportunity Commission (EEOC) if the employer has 15 or more employees). If a small employer has rejected your employment application based on your national origin, contact IER to determine whether IER or the EEOC has jurisdiction to assist you.

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Q. I applied for a job with a small employer and was informed that in order to be hired I would need to speak English without a foreign accent. Is this legal?

A. Employers generally cannot require individuals to speak English without a foreign accent. If a small employer rejects an applicant on this ground, it may violate the anti-discrimination provision of the INA. Such conduct by a larger employer may violate Title VII of the 1964 Civil Rights Act, which is enforced by the Equal Employment Opportunity Commission. More information about national origin discrimination is available here.

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For other IER information or for direct assistance, please contact IER's anonymous worker or employer hotlines (language interpretation available) Monday-Friday, 9:00 a.m. - 5:00 p.m. Eastern Time:

Worker Hotline: 1-800-255-7688
Employer Hotline: 1-800-255-8155
TTY: 1-800-237-2515

 


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Updated: January 2017

Updated January 31, 2017

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