U.S. Department of Justice
Civil Rights Division
Office a/Speclat Counsclfor Immigration-Related

Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530

Main (202) 616·5594
Fax (202) 616·5509

JAN - 5 2011
BY FIRST CLASS MAIL AND EMAIL (RKrug@HSPLEGAL.COM)
Mr. Robert Krug, Esq.
70 W. Madison St., Suite 4000
Chicago, IL 60602
Dear Mr. Krug:
Thank you for your e-mail inquiry dated November 21, 2011. In your email you ask if
there are any circumstances during the Form 1-9 process when an employer can request
documents outside of those on the List of Acceptable Documents. In your follow-up inquiry,
you explain that your client seeks EB-5 investor status, pursuant to 8 C.F.R. § 204.6, and would
like guidance on requesting additional or specific documents during the employment eligibility
verification (Form 1-9) process in order to confirm that an employee is a "qualifying" worker for
EB-5 purposes.
Please note that the Office of Special Counsel for Immigration Related Unfair
Employment Practices (OSC) cannot provide an advisory opinion on any particular instance of
alleged discrimination or on any set of facts involving a particular individual or entity. However,
we can provide some general guidelines regarding employer compliance with the anti
discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, which
OSC enforces. The anti-discrimination provision prohibits hiring, firing, recruitment or referral
for a fee, and tmfair documentary practices during the employment eligibility verification (Form
1-9) process (document abuse) on the basis of citizenship or immigration status or national
origin. It also prohibits retaliation for filing a charge, assisting in an investigation, or asserting
rights under the anti-discrimination provision. For more information, you may visit our website
at www.justice.gov/cli/aboutlosc or call our toll-free hotline at 800-255-8155.
Pursuant to federal law, employers must verify the identity and employment authorization
of each person they hire. 8U.S.C. § 1324a(b)(1)(a). Under 8 U.S.C. § 1324a(b)(I)(B),anew
employee may choose to show either a Form 1-9 List A document (identity and work
authorization), or both a List B (identity) and a List C (work authorization) document. See U.S.
Citizenship !U1d Immigration Service (USCIS) Handbook for Employers, Instructions for
Completing Form 1-9 (M-274) (Rev. 06/01111) (hereinafter "M-274"), pages 4-5, 37-38
(discussing an employee's choice of employment eligibility and identity documents).

No provision of the INA specifies any exceptions or special rules regarding altering the types of
1-9 documents acceptable to determine whether employees are "qualifying" workers for EB-S
purposes. Moreover, neither the Form 1-9 nor the M-274 discusses any exceptions based on
whether an individual is a qualifying employee for EB-S purposes. See id.
We recognize that, in addition to other requirements, EB-S Immigrant Investors must
create or preserve at least 10 full time jobs for "qualifying" employees, and that certain
categories of work authorized individuals, such as non-immigrant aliens, do not constitute
"qualifying" employees. 8 C.F.R. § 204.6. We caution, however, against verifying qualifying
status during or through the Form 1-9 process. An employer that requests a specific document or
additional documents for the Form 1-9 beyond the List of Acceptable Documents based on an
employee's immigration or citizenship status may be deemed to violate the anti-discrimination
provision of the INA, depending on the specific circumstances of the case. Therefore, OSC
encourages an employer to develop a process to determine "qualifying" status that is separate
from the Form 1-9 process.
We hope this information is helpful.
Sincerely,

~~
Seema Nanda
Acting Deputy Special Counsel

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U.S. Department of Justice
Civil Rights Division

Federal Protections
Against National
Origin
Discrimination

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INTRODUCTION
Federal laws prohibit discrimination based on a
person's national origin, race, color, religion,
disability, sex, and familial status. Laws prohibiting
national origin discrimination make it illegal to
discriminate because of a person's birthplace,
ancestry, culture or language. This means people
cannot be denied equal opportunity because they or
their family are from another country, because they
have a name or accent associated with a national
origin group, because they are limited English
proficient, or because they participate in certain
customs associated with a national origin group, or
because they are married to or associate with people
of a certain national origin.
The Department of Justice's Civil Rights Division is
concerned that national origin discrimination may
go unreported in the United States because victims
of discrimination do not know their legal rights, or
may be afraid to complain to the government. If
you think you, or someone you know, has been
discriminated against because of national origin and
want to learn more about exercising your legal
rights, you should read this brochure.
This brochure explains the laws prohibiting national
origin discrimination and provides some examples.
You may find additional information about the Civil
Rights Division and its Sections on the internet at
http://www.justice.gov/crt. You may contact the
Division to report complaints of discrimination as
explained below.

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KNOWING YOUR LEGAL RIGHTS
The Civil Rights Division of the Department of
Justice enforces federal laws that prohibit
discrimination in:
Education
Employment
Housing
Lending
Public Accommodations
Law Enforcement / Police Misconduct
Voting
Federally-Assisted Programs
The Division also enforces laws that prohibit
discrimination on the basis of disability, protects the
civil rights of persons who are institutionalized in
certain state or local facilities, and prosecutes
crimes that are motivated by a crime victim's race,
color, or national origin.
In some cases, the Division may only become
involved if there is a "pattern or practice" of
discrimination. A "pattern or practice" generally
means that there is more than a single incident of
discrimination, and that there is a policy or repeated
conduct that is discriminatory.

CRIMINAL VIOLATIONS OF
CIVIL RIGHTS
* A young man of South Asian descent is assaulted
as he leaves a concert at a nightclub. The assailant,
a member of a skinhead group, yells racial epithets
as he beats the victim unconscious in the club's
parking lot with fists and a pipe.
* At Ku Klux Klan meetings, a Klansman tells
other members that Mexicans and Puerto Ricans
should go "back where they came from." They burn
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a cross in the front yard of a young Hispanic couple
in order to frighten them and force them to leave
the neighborhood. Before burning the cross, the
defendant displays a gun and gives one of his
friends another gun in case the victims try to stop
them.
* An American company recruits workers in a small
Mexican town, promising them good work at high
pay. The company smuggles the Mexicans to the
United States in an empty tanker truck. When they
finally arrive in the U.S., the workers are
threatened, told that if they attempt to leave their
factory they will be killed.
These examples could represent criminal violations
of civil rights laws. The Criminal Section of the
Civil Rights Division prosecutes people who are
accused of using force or violence to interfere with
a person's federally protected rights because of that
person's national origin. These rights include areas
such as housing, employment, education, or use of
public facilities. You can reach the Criminal Section
at (202) 514-3204 or write to:
U.S. Department of Justice
Civil Rights Division
Criminal Section, PHB
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

DISABILITY RIGHTS
* An HMO that enrolls Medicaid patients tells a
Mexican American woman with cerebral palsy to
come back another day for an appointment while it
provides immediate assistance to others.
This example may be a violation of federal laws
that prohibit discrimination because of disability as
well as laws that prohibit discrimination because of
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national origin. If you believe you have been
discriminated against because you have a disability
you may contact the Disability Rights Section at
(800) 514-0301 (voice) or 800-514-0383 (TTY), or
by e-mail at ada.complaint@usdoj.gov
You may also write to:
U.S. Department of Justice
Civil Rights Division
Disability Rights Section, NYA
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

EDUCATION
* A child has difficulty speaking English, but her
school does not provide her with the appropriate
instruction and services to help her learn English
and other subjects.
* A majority Haitian school does not offer honors
classes. Other schools in the district that do not
have many Haitian students offer both honors and
advanced placement courses.
* School officials fail to respond when AsianAmerican students complain of persistent verbal
and physical harassment by fellow students.
These examples may be violations of federal laws
that prohibit national origin discrimination in
elementary schools, secondary schools (middle and
high schools), and public colleges and universities.
The Educational Opportunities Section enforces the
Equal Educational Opportunities Act of 1974,
which requires state educational agencies and
school districts to take appropriate action to
overcome language barriers that impede English
Language Learner (ELL) students from
participating equally in educational programs. The
Section also enforces federal laws that protect
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students from harassment or otherwise being treated
differently and adversely based on their national
origin.
For more information, including instructions on
how to file a complaint, please visit the Section’s
website at www.justice.gov/crt/edo/. Also, you may
contact the Section directly by telephone at (202)
514-4092 or (877) 292-3804, or by email at
education@usdoj.gov. You may also write to:
U.S. Department of Justice
Civil Rights Division
Educational Opportunities Section, PHB
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

EMPLOYMENT
* A transit worker's supervisor makes frequent
racial epithets against the worker because his family
is from Iran. Last week, the boss put up a fake sign
on the bulletin board telling everyone not to trust
the worker because he is a terrorist.
* A woman who emigrated from Russia applies for
a job as an accountant. The employer turns her
down because she speaks with an accent even
though she is able to perform the job requirements.
* A food processing company requires applicants
who appear or sound foreign to show work
authorization documents before allowing them to
complete an employment application while native
born Caucasian applicants are not required to show
any documents before completing employment
applications. Moreover, the documents of the ethnic
employees are more closely scrutinized and more
often rejected than the same types of documents
shown by native born Caucasian employees.

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These examples may be violations of the law that
prohibits discrimination against an employee or job
applicant because of his or her national origin. This
means an employer cannot discipline, harass, fire,
refuse to hire or promote a person because of his or
her national origin.
If you believe an employer, labor organization or
employment agency has discriminated against you
because of your national origin, contact:
Equal Employment Opportunity Commission
(800) 669-4000
(Employers with 15 or more employees)
Office of Special Counsel
(800) 255-7688
U.S. Department of Justice
Civil Rights Division
Office of Special Counsel for Immigration-Related
Unfair Employment Practices, NYA
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
osccrt@usdoj.gov
(Employers with 4 to 14 employees)
Employment Litigation Section
(202) 514-3831
U.S. Department of Justice
Civil Rights Division
Employment Litigation Section, PHB
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
(State or local government employer with a pattern
or practice of illegal discrimination)
In addition, an employer may violate federal law by
requiring specific work authorization documents,
such as a green card, or rejecting such documents
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only from applicants of certain national origins. For
more information or to file a charge, contact the
Division's Office of Special Counsel at the above
address, toll-free number or e-mail address.

HOUSING
* A Native Hawaiian family is looking for an
apartment. They are told by the rental agent that no
apartments are available, even though apartments
are available and are shown to white applicants.
* A realtor shows a Latino family houses located
only in predominantly Latino neighborhoods and
refuses to show the family houses in predominantly
white neighborhoods.
These examples may be violations of the federal
Fair Housing Act. That law prohibits discrimination
because of national origin, race, color, sex, religion,
disability or familial status (presence of children
under 18) in housing. Individual complaints of
discrimination may be reported to the Department
of Housing and Urban Development (HUD) at
(800) 669-9777. If you believe there is a pattern or
practice of discrimination, contact the Division's
Housing and Civil Enforcement Section by
telephone at (202) 514-4713 or (800) 896-7743, or
by e-mail at fairhousing@usdoj.gov. You may also
write to:
U.S. Department of Justice
Civil Rights Division
Housing and Civil Enforcement Section, NWB
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

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LENDING
* A Latina woman is charged a higher interest rate
and higher fees than white male customers who
have similar financial histories and apply for the
same type of loan.
This example may be a violation of federal laws
that prohibit discrimination in lending because of
national origin, race, color, sex, religion, disability,
age, marital status, because any of a person's
income comes from public assistance, or because
the person has exercised rights protected under the
Consumer Credit Protection Act. If the loan is for a
home mortgage, home improvement, or other
housing-related reasons, you may file a complaint
with the Department of Housing and Urban
Development at (800) 669-9777. If the loan is for
purposes other than housing (such as a car loan),
you may file a complaint either with the lender's
regulatory agency, the Federal Trade Commission
or your state Attorney General’s office. You may
also contact the Housing and Civil Enforcement
Section at (202) 514-4713 or (800) 896-7743, or by
e-mail at fairhousing@usdoj.gov, to obtain more
information about your rights or to file a complaint.
You may also write to:
U.S. Department of Justice
Civil Rights Division
Housing and Civil Enforcement Section, NWB
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

PUBLIC ACCOMMODATIONS
* In a restaurant, a group of Asian Americans waits
for over an hour to be served, while white and
Latino customers receive prompt service.

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* Haitian American visitors to a hotel are told they
must pay in cash rather than by credit card, are
charged higher rates than other customers, and are
not provided with the same amenities, such as
towels and soap.
These examples may be violations of federal laws
that prohibit discrimination because of national
origin, race, color, or religion in places of public
accommodation. Public accommodations include
hotels, restaurants, and places of entertainment. If
you believe you have been denied access to or
equal enjoyment of a public accommodation where
there is a pattern or practice of discrimination,
contact the Housing and Civil Enforcement Section
at (202) 514-4713 or (800) 896-7743, or by e-mail
fairhousing@usdoj.gov. You may also write to:
U.S. Department of Justice
Civil Rights Division
Housing and Civil Enforcement Section, NWB
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

POLICE MISCONDUCT
* Police officers constantly pull over cars driven by
Latinos for certain traffic violations, but rarely pull
over white drivers for the same violations.
* A police officer questioning a man of Vietnamese
origin on the street gets angry when the man is
unable to answer his questions because he does not
speak English. The officer arrests the man for
disorderly conduct.
These examples may be violations of the Equal
Protection Clause of the United States Constitution.
They may also be violations of the Omnibus Crime
Control and Safe Streets Act of 1968. That law

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prohibits discrimination because of national origin,
race, color, religion, or sex by a police department
that gets federal funds through the U.S. Department
of Justice. They may also violate Title VI of the
Civil Rights Act of 1964, which prohibits
discrimination by law enforcement agencies that
receive any federal financial assistance, including
asset forfeiture property. This includes most state
and local law enforcement agencies.
Complaints of individual discrimination can be filed
with the Federal Coordination and Compliance
Section at:
U.S. Department of Justice
Civil Rights Division
Federal Coordination and Compliance Section, NWB
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

or contact the Federal Coordination and
Compliance Section at (888) 848-5306 or (202)
307-2678 (TDD).
Complaints of individual discrimination may also
be filed with the Office of Justice Programs at the
Office for Civil Rights, Office of Justice Programs,
U.S. Department of Justice, Washington, D.C.
20531, or contact the Office of Justice Programs at
(202) 307-0690.
The Special Litigation Section investigates and
litigates complaints that a police department has a
pattern or practice of discriminating on the basis of
national origin. To file a complaint, contact the
Special Litigation Section at (202) 514-6255 or
(877) 218-5228. You may also write to:

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U.S. Department of Justice
Civil Rights Division
Special Litigation Section, PHB
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

CIVIL RIGHTS OF
INSTITUTIONALIZED PERSONS
* A jail will not translate disciplinary hearings for
detainees who do not speak English.
* A state's psychiatric hospital has no means of
providing treatment for people who do not speak
English.
These examples may be violations of the Equal
Protection Clause of the United States Constitution.
The Special Litigation Section enforces the
constitutional rights of people held in state or local
government institutions, such as prisons, jails,
pretrial detention centers, juvenile correctional
facilities, publicly operated nursing homes, and
institutions for people with psychiatric or
developmental disabilities.
If you are a resident of any such facility and you
believe there is a pattern or practice of
discrimination based on your national origin,
contact the Special Litigation Section at (202) 5146255 or (877) 218-5228. You may also write to:
U.S. Department of Justice
Civil Rights Division
Special Litigation Section, PHB
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

11

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FEDERALLY ASSISTED PROGRAMS
* A local social services agency does not provide
information or job training in Korean even though
one quarter of local residents speak only Korean.
* At a hospital in an area with a large Latino
population, employees in outpatient clinic routinely
make fun of, comment on the accents of, and
sometimes delay services to Latino patients. Latino
patients are told to bring their own interpreter
before they can see a doctor.
These examples may be violations of federal laws
that prohibit discrimination because of national
origin, race or color by programs that receive
federal funds. If you believe you have been
discriminated against by a state or local government
agency or an organization that receives funds from
the federal government, you may file a complaint
with the Division's Federal Coordination and
Compliance Section at (888) 848-5306 or
(202) 307-2678 (TDD). You may also write to:
U.S. Department of Justice
Civil Rights Division
Federal Coordination and Compliance Section, NWB
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

The Federal Coordination and Compliance Section
will refer the complaint to the federal funding
agency that is primarily responsible for enforcing
nondiscrimination prohibitions applicable to its
recipients.

VOTING
* A polling official requires a dark-skinned voter
who speaks with an accent and has an ethnic last

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name, to provide proof of American citizenship, but
does not require proof of citizenship from other
voters.
* Despite requests from voters in a large Spanishspeaking community, election officials refuse to
provide properly trained Spanish-language poll
workers and adequate election materials in Spanish,
including registration forms and ballots, or to allow
limited-English proficient voters to bring translators
into the voting booth.
The Voting Section can take action to correct the
issues raised in these examples. Federal law
prohibits various forms of voting discrimination,
including the singling out, intimidation and
harassment of voters based on their race, color or
because they speak a minority language. In
addition, federal law also requires some
jurisdictions to provide minority language election
materials and language assistance so that limitedEnglish proficient voters can cast an informed and
effective ballot. These laws also give voters who
need help reading the ballot or other election
materials the right to be assisted by someone whom
they choose (other than a representative from their
employer or union). Further, federal observers or
Voting Section staff may monitor election-day
practices in response to concerns about
discrimination in the voting process and lack of
language minority access. The Section can also take
action to address methods of election, such as atlarge or district plans, which undermine minority
voting strength.
If you believe that you have been discriminated
against in voting or denied assistance in casting
your ballot, you may contact the Division's Voting
Section at (800) 253-3931 or by e-mail at
voting.section@usdoj.gov. You may also write to:

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U.S. Department of Justice
Civil Rights Division
Voting Section, NWB
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
When you call any of the offices listed in this
brochure, the phone will be answered in English. If
you need an interpreter, tell the operator what
language you speak. The operator will put you on
hold while an interpreter is found. Please do not
hang up. Through a language interpreter service, we
are equipped to assist callers in all languages.

Note: For persons with disabilities, this document
will be available in large print, audio tape,
computer disc, and Braille.

Please feel free to make copies of this brochure.

Issued August, 2010

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Federal Protections Against
National Origin Discrimination
English
www.justice.gov/crt

United States Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, NW
Washington, D.C. 20530


u.s. D.epartment of Justice
·Civil Rights Division
Offtce ofSpecial Counselfor Immigration-Related
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, De 20530
Main (202) 616-5594
Fax (202) 616-5509

DEC 22 2010

Via Email (Linda.L.IDLLS@ojd.state.or.us)
.... .i

Ms. Linda HilIs
HRManager
Oregon Judicial Department
1241 State Sto 2R
Salem,OR 97301
Dear Ms. Hills:·
This is in respons~ to your e-rn.ail dated August 19, 2010, to the. Office of Special
Counsel for 1mmigration-Related Unfair Employment Practices (OSC). We apologize for the
delay in our response. In your e-mail, you request guidanceregarding a question that the
automated recruitment software purchased by your agency uses ¡n its employment application:
"Can you, afier employment, subinit proof of your legal right to work in the United States? .
y e sINo." You further ask where an applicant responds to the question with a "no" answer,
that applicant from further consideration.
whether the employer may disqualify
.
.
.

.

As you may know, OSC eilforces the anti-discrimination provision ofthe!NA. The anti
discrimínation provision prohibits four types of unlawful conduct: (1) citizenship or immigration
status discrimination; (2) nationa1.origih discrimination; (3) unfair documentary practices during
the employment eligibility verification (Form 1-9) process ("document abuse"); and (4)
retaliation for filing a charge or asserting rights under the anti-:discrimination provision. OSC
cannot provide an advisory opinion on any set offacts involving a particular individual or entity .
. However, we can provide sorne general guidelines regarding the anti-discrimination provision of
the 1mmignition and Nationality Act (!NA), 8 U.S.C .. § 1324b, and informatioll conceming the
. employment eligibility verification process.
.
The Form 1-9is to be completed at the time that employment begins, ·see Form 1-9 (Rev.
8/7/09). It includes Lists of Acceptable Documents that makeclear to employees what
documents are acceptable for establishing authorization to work in the United States. The Form
1-9 and accompanying guidance, which is published by the US. Citizenship and Irnmigration
Services (USC1S), may be obtained by visiting the USC1S website at www.uscis.gov.
We are enc10sing letters previously issued by OSC ruscussing appropriate questions
about work authorization in job applications. As no.ted in the enclosed-July 31, 2008, letter,
because the 1-9 Form is supposed to be completed afier hire, pre-employment questions about
proof of employment eligibility - even if general in nature -- maylead to a perception that the

employer is engaged in prescreening, i.e., making employment decisions based upona pre
employrnent determination about applicants' .citizenslúp status.
.

An applicant's response to the pre-employrnent inquiry: "Can you, after employrnent,
submit"proof ofyour legal right to work in the Uruted States? Yes/No," may lead an employer to
draw incorrect conclusionsabout an applicant's ability to show acceptable proof of employrnent
eligibility for Form 1-9 purposes. For example, applicants may not understand what constitutes
"proof' oftheir legal rigb,t to work without first reviewing the 1-9 Lists of Acceptable
Documents. Applicants may be similarly unaware ofthe receipt rule for documents that have
been lost, sto len or damaged that is described in the Form 1-9 Instructions and in the Handbook
for Ernployers: 1nstructions forCornpleting the Fon;n 1-9 (Ernployrnent Eligibility Form), M-274
(Rey. 7/31/09), which al~ows an employee to present a receipt as acceptable proof of
employment eligibility in sorne instances.
These problems can be ayoided by asking whether an applicant is currently authorized to .
work in the United States. The focus of a question phrased in thls rnanner is on the appli.cant's .
work-authorized status as opposed to the unspecified documentes) that he or she may possess to
evidence his or her statUs.
We hope this information is helpful. For further imQrmatlon regardiI.1g OSC, or the
!NA's anti-4iscrimination provision, please feel freeto call our toll-free hotlínea~ 1-800-255
8155, or visit out website at: www.;ustice;goy/crtlosc.

Enclosures

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L Ho~ fa! may·a business go.in xequesthlg ro View documentation. sueh as
:lm:rnigra:tion documems. or 1-9 ~Onnsl fról}l employe.es of a co:qtractor (sucn as a
staffing agency)? May the b:u::¡mess requ:¡re fue agen.cy supplymg the workforce to :'
inden;rirlfj it in case fuere is a violatio:iL?
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'2. ~¿~ c~ emplQyé¡;s, pIo~ectthems~lyes fró;;;' emplqyer ~~ctio~ fb:r: illega.l
hiring 'Wl?-~.deal~ ~th. en independ~t ~ontra~or?' he employérs e:x.cused

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.' •• : frOID :ve~mg fue emplo~ent a~thonzatí.on of'm~epen~ent contractoI's?Should
. ,tne employeI ask fue worke.rs to Slgn a contr¡;tct statiri.g that th.ey are au.thonzed fox

UIÜted States?"
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3. ls it a V±olati.on ofthe anti-discri.ti.on pIovisíOl3$ offue Immigration and: '

Nation~itr Act @A) ·~o askj~b aJ'Plic~.:ts,. prior to fue jQb off~r, whef?ej; ihe'!( .

a,l'e legaJJ.y aufhonzed to woik m "fue Umted States, end whether th.~y. willr.egu:¡.re
i:i;nmigr!j.tiou vi~a spons?i::s~p f()r employment? May Job app:p.cants be requfredto.
Slgn an attestaij,on to tbis effect?
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. . . First, please be advise.d that fue ose may not give an ad'Vi~ory opinion on any.set .offad; .::'.,
involvlng a particular company Ol:' individl.:!a1. However,I am happy to provide sOlJ?egeneraJ..·. ' .. ,~,::
guidelines s:s to fue anti-díscri.minauon provisions offue !NA (codified in8 v.. S.C, .§ 13 24}:»~
. . . '. '. . .
'whlchOSC emoIces..These a:n:ti.-clisc.rimination;provisions ;prohibiti'ourtypes of·conduct: .o) :., ~:;' , .
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. dóoumentary praciioes during me' émployrn.ent eligibility verific.ation (Form 1-9) pr()cess
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.("document abUfe"); and (4) retaliation fo;!: ñling a charge OI asserting tígb:ts.undet: fue .an:li- :" ,'. ,~ ;;. ,:" .'.
discríminatioll.provision.
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Letterto SarikaI. G¡r¡;g, E~q.
July 31, 2008 .'. '.:
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Many ofilie issues raisy~ in fue :fu$t and second sets of questions pJ,"o'VÍded aboye fall ~. '~.'~',
vvithin fue purview ofilie Department ofHomeland Security (DHS), wmch enforces fue laws
.
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.' related to hiring unauiliorized worlcers under lNA-§ ~74A. &U.S.C. § 1324a. As.such, 1 strong1y ;':..:: .. í :' .
encourage you. to seek griidance from DHs's U.s.. Citizenshlp' and Immigration Seryi.ces CUSCIS)' .:., ~: :' "
íbrough its Offic.e ofEusíness Liaison bycalling lw86o-357-20~9;;Dr by fa:x. at(202) 272-18.-65. :.> ;'.:'
In addition~ tb.~ Han.dbookfor '$mployers, Instructionsfar Completing the !,opn 1-9 (En'Ployme1/.t~. :, ' ... :., , .
Eligi.bility Form) ,J?ubllshed by USCIS~ ~ontains answer:s. to comman questlo:o.s deallng V\1itb. 1-9 .: (;. .' ,
. cOIllpletion and employment eligi'Qility ve:rp:i.cation. .f... copy-of thls decument is available on fue. '. ': ,', .
. , web afhttp://wyrw,uscis,gov/files/na'!ivedoCUIb.ents/m-274.:pdf.
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.As a gsmeral nite; Ose wi11.not :find!easonable cause to be1i~ve discri:ríllnatíon has
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occurred simply because emplo)Íets Iequlre tUat al! emPloyees and,contraot wotkers be
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~ufu.orlzed. to wbF1c; ncr would ose find that.denianding to see fue FO:rm 1-9 documentation for·. '. :.: ". '
e:r:q.:ployees ptovided by a .$ta:ffín.g agency is a per se violatlotl. QfJN1\ § 274B: Howevet, in ooi¡ig:. I ': •• : , .
.so~ employers may npt act-1,p. a: discri:o;t:inatcrY J:P.:anner ,nO! treat empluyees disp?Xate1y beca-qse of, : .:" ... : .
nationa1·o~gin. or citiz~nsmp- sta~, Moreover~ employe~s may be liable f-or dis~tQ¡:y
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. behavioi tO''?lards employees a sta:ffiñg agency provides if.tb.ere is a jokt-employer re~ati.on~J? : ~.' ,~ . , . ,. '. <;'
It-is OS9's longstandlng praG'Uée to examine the'totality of wldenc'e when determi!Úng whethek; ~. . " .,.
fuere 18 Te~Oll 1:0 'Relieve ~hat discrlminanon. has occun:ed.
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thb:d s~ts ~f q~e'stions"you que~ ;h~ther ah .em.ployer' may requke .. ;:: ".
independem, conn-actors OI jo~ applicanís te sigo. a contJ;aot 01 omei."Wise attest that :fuey ?r.e .... ",:. . .' '.'
autb.oriz~d :tOo woik, an.~ that fuey 40 nohequi:ce visa' sponsorsmp. ose carmot proYlde iegal .' ~,,~ X,;:~., . : ...
.In yOU!. seconcÍ' ando

'8dvice'on fue 'advisability ofagreements..between. employer~ and independcnt coni:¡:aétoIs tb . ....:..: -.;::' '. .
ensuXe t'he. employment eligibility of C.OutIact workers. Keep:in mind. 'ho.wever, :tbat ar¡.. em.:p~oyet~ :';~", ~: . ''..
mayuot ciICQJ;O.v~ntits·Yerification obllgations bytrea,ting an.e:rnplóyee as anindependént .'
C9ll'tracto:¡;, and c.a.nnot impose Buen agreemeJ:lts in a: .c1i¡¡crimip,ato:ry:ro.an;o.er.
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. Additi~l'lial~y, :fuere ab;eady is a reqUu;~:rnep.t for employees and employers ta ~tte~t to
. Ylorlcaumorization an.d yerificanon thereofby oap:1pleting fue Fotn;lI~9. By law and USCIS
,
pólicy~ fue 1.:9 :rnust be; cOPlplet¡;;d aft?r fue employermakes a furo. job -offer and witbin wee ·d¡:¡.ys '.:
.,
ofilie coromencenient of employment. Therefm:e,requlring ajob applicant to·at\:est t? .' .' -' :.;.
employment eligibility prior :to rec\fiving en pffer of eniploynlent'may be im.pemri.ssible pre-.
'Screening', .Because dis.criminatciry pracnces frequently are associated 'Wiili pre-screemng, OSe'
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will investigate BIl, employer fOl: a. potential violation of tb.e anti-discrimination provision ?f fue :'. ..::
lliA whenevet fuere is an allegation of pre-screerrlng.. Additional1y, prewscreemng -practices may. . ...'. . ..
be found to 'Violate.the laws that DHS enfoIce.s. See 8 C:,E'.R. §.274a,2(b) (200E)..
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, .... : ........... ....... ... _.......... "Finálly> the pióbibiti.Oii·~gaiüSt qltiZciJlimp st8:tus' mscrinúnation does Jióf:i:eqwéilie" ._ . : :::.: ;~I::"': ....... ..
.
employer te petitiun for a'Visa on añy woiker' s oehaJf.. However) to avoid fue l3-ppearance -0:( <'~: . " " . : .
citízenshlp status disc.ri.mib.aíion, ose recommen.cls tb,át you ask on1:y w'b,ether fue .applipa:nf 'Wili, : ' I ~ " ~ ..
need visa sponsorsmp, not what..specifíc citizenshlp status tb.~ applicaní cUll'ently holds:
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Letter te Sai,ika1.. Gl!Fg, Esq.
Jü1y 31,2008
Page3

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I hope thls 1nformation 1S of assistancé te you, For :furtb.er,information xegarding OSC;OI' ,' ..
fue RilA
t S antl.-discrimination provision, please f~el free to call us at 1-800-255-8155;
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Spec1á1. CmIDsel

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U.S. Department of Justi~e
Civil Rigb.ts Division

Offics 01$peelal COl/llselfor lmmfgration Related
Unjafr Emplo)mlsnt Praelicss - NY.A.
950 Psnns)'lva/lta A.venus, NW
Washington, DC? 2~530

,

Auglist 12"'2009
Montserrat Miller, Esq.
Greenberg Traurig, LLP" .
.1750 Tysons Boulevard, Suite 1200
. McLean, VA 22012' .
Dear Ms, Miller:

Tbis is in response to your ~uly 15, 2009, letter to the Offi.ce of Special Counsel fo!
Tmrnigration-Related Unfair Employment Praotices (OSC). In your letter, you Iequest guidance
regarding pre-employment questions for job applicants whó are tempcirary uonhnmigrant visa'
holders; such as E-lB 'Visa holders, and whose visas Will expire in <?ne yem oI1ess. Specifically,
you refetenced out April24, 2007, tec1p:úcal assistalice l~tter, Wmch suggested tb.e following pre
. employment advisory: "Thls employer will uot sponsor applicants for the following work visas: _ ' '
_,O> You then asked the foll~wing questions: "
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i. [W]hat if a company does in fact sponsor individuals for H-lB visas but the
problem arises when'someone has 1esB than.one year·of.lawful employmel,lt status
~emain:ing? . .
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2. What if an applicant r~sponds YES to the question that they "now' or in fue
future require sponsotship for an employment visa"? Can an employer follow up
that response by asking what type ofvisa one holds and how much time remai.ii.s
on their c'Qrrent visa and if it lS one year or 1ess not hire th~ individual?

the

. 3, In
altemative, is it acce.ptableon thejob application to state. "Ifhired, can
y01,1 p'rovide proof that you are legally able to work in the United States for at least
12 months"? anO. if the person answers NO then not hite the individual?
Please note that ose cannot.provide ~ adVisory opinion on any set of facts ~volVing.a
particular individual or entity. 'However, we can provide some general guidelines regardlng the
aiJ.ti-discrimination provision ofilie Immigratíon and Natiollality Act (INA), 8 U.S.C. § 1324b,
and employer 'actions under that provision.
As you may know, OSC 18 responsible for enforcing me anti-discrimination provis~on of
fue IN:A, which prohibits national origin disCriIJ:ili¿ation, citizenship status discr:imin'ation, unfair
documentary practices (document abuse) during fue emp10yment eligibility verification (FOIm 1
9) process, and retaliat!-0n. Only-certain ''protected individuals" are pr9tected from citizenship

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status discrimIDation. Thes y rodividt1;als inc1ude United States citizens, Urrited States natlonals,
temporary residepts, recent 1awful permanent resid~nts, refugees and asylees.
We wiIl address your fust two questions in conjunctio~. ,A;n. individual who requires
employer sponsorship for a''Visa, such as an H-lB visa holder, is not a protected individual under,
8 U.S.C; § 1324b for citizenship status discrinrlnation. Therefore, "pre-employment inquirles
about applicants who' require employer visa sponsorship" do not violate the prohibitions against
citizenshlp status discrimination ro. 8U.S.C. ,§ 1324b. Lett~r frOID Patriék Shen, Special CO'\.lllsel,
OSC, to Patricia Gannon, Greenberg Traurlg, LLP (Jul. 31,2008), a copy ofwhich is attached.
Tbls would inelude inquirles relating to the expiration date ofthe H-IB visa. Additionaliy,
em.ployment decisians made exclusively on tne'basis of a worker's H71B status, OI: other
temporal)', noni:n:múgrant status, would not 'Violate the eitizenship status discrimination provision
of 8 U.S.C. § 1324b. LetteÍ' from Katherine A. Baldwin, peputy Special CO'Ullsel, OSC, to Steve
Nadel, Attomey, Ahlers & Cooney, P.C. {May 1, 2009), a eopy ofWhieh is attached.
However, pIease note that a1l work au;tl10rized individuals,rocludin'g H-lB visa holders
are protectedfrom national origID. discrinrlnation and document abuse 'Ullder 8 U.S.C. §
.
1324b(a)(l)(A) and (a)(6), ¡lS ,well as frOID retali~tion under, 8 U.S.C. §1324b(a)(5). See Letter
from Kat9,erine A. Baldwin, Deputy Special Counsel, OSC, to Leslie K,L. Tbiele"Attomey,
Whiteman Osterman '&,Hanna LLP (Apr. 24, 2007) (on'file with OSe). See also Urrited States v,
Diversified Tech, & Servs, ofVa.. !ne" 9 OCABo'no. 1095 (2003) (l:elief ordered for al1 victims
'of document abuse wifuout disth).ctíon as to status as a II protected individuaP'); United States y.
Townsend Culinapdne., 8 OCABO no. 1032 (999) (same); United States v. Guardsmark. Ine"
3 OCABO no. 572 (19~3) (~l worJ,c authorized individuals are pr9tected froro doeument abuse).
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With respeqt to your third qu~stion, please be aware 'tliat asking job appli9ants for proof '
that fuey are legally able to work in the United States for at least twl?lve months may result in fue
rejection of,applicants who are protected frOID citizensbip discrilninatiCin under the anti-'
discrimination provision ofilie mA. Certain "proteeted individuals" whose work authorization
is incident to their status, suen as lawful permanent residents, asylees, and refugees, may
. nonethe1ess possess an employment authorizatio,n document which expires in one year or less,
even tnougn tney are authorized to work'indefmitely. ánd are entitled to an umestricted Social
Secu,rity eard. ' Thus, although the,work authorization doeument of Bueh ll1dividuals may expire
ro less than twelve months from the date,oftheir job application, they continue to be authol'ized
to work when that docui:nent expil'es. 1 In sum~ refusing to bire j ób applicants far failure to

1As'the United States Citizenship and 1mmigration Servi~es (USCIS) Hal1dbook fol' Em¡?loyers.
Instructions tor Completing Fonn H CEmployrnent E1igibility Vel'ification FOl1n), kpr. 2009, at 12,
explains:

;Future eXpiraÚ9D: dates ma)' appear on t1e ero.ploynlent authorizatio~ docuni.ents of
aliens, including, among ot11ers, permanent residents and refugees. USCIS inc1udes
ex.piration dates even on doctunents issued to aliens with permanent 'employment

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.provide pro(;>f of at least twelve l,'llonths' employment eligibilitymay result in the disparate .'
treatment of "protected individuals" in the hiring process on fue basis of citizenship status under··
'8 u.s.e. § 1324b.
I hope this information is helpful: Please feel free to call ose tbrough OUT toU-free
number at 1-800-255-815$, ifyou havefurthet questions about ws matter.

. Katherine A. Ba!
Deputy Specia!.eo~el
~nclosures

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. authorization, The existence of a future expiration date:

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1, Does. not preclude contlnuous employroent authorizationj
2. Does not mean that subsequent employment authonzation wilJ not be
granted; a n d '
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3. Should not be considered in determiIiing whether the alien ls
qualified for a particular position. .

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:U.S. Departmentof Justice

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O.ffiC8 ofSpeciaf CQWueZfor lmmfgratioJl.!Mat.sd

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Ur¡f!2fr Employms(ltI'ratJtJces·. NY"t

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WasJztngton,.DC 20S.30
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July 31, 2008

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. 11taÍlkY9uJoryoU;; electrónic ~ail to fue Office ofSpeci:a1 GQ\llli1el fQr Immi~~iion- .''' :.:: . . ....
, . telated'Unfak Employment.p~tices {OSC)., ;dat~
... 1:0. your message, y6u 1?re:sem,~. ':. ~"": "... :
a number ofscenari.os associated witb. fue te9.mrement to verify emplo~eD.t eligibili:ty.' In sum~ l' . '::: ,
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.''UIlCl:erstand y~UI t¡Uestions:o be as, folloW; . "
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, 1. H.o~ fannay·a business go.in :requestin.g ro ~eW docume.lltl;l.ti.on. such as
:immi.gration. dócume$. or 1-9 forms. :fróm employe.es of a contractor: (snob. as :a
staffing agenoy)? May fue bu&mess .reqmreme agen.cy sU:pJ;llying th.e wo;rkfo;rce to :'
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... it in case tlie:re i8 a violaiioii.?
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. 2, Howcan ernployé¡;s. pIoteot th.ems~lyes fró;¿' emplqyer sanctiollS fo:r: illegal "
. hiring wheD..dealing wj.th SIl. in.dependent contt'aotor? Are employérs ex,cused
,'from :ve~1ng tbe employ.m.ent a'L!-thorization of.inqel?e:o.~ent contracto!s? "Should
.the· employeí ask the WOIke.rS to SlgD. a. contr¡iCt statiJig that th.ey axea'llthonzedfor
.'
employm~nt m:'th.e UDited States?
"

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3, ls a -V±olation ofthe SIl.ti~discrimmáiionprovisíol3$ ofthe Immig¡:ation and: .
Nationa1ity Act (INA}:to ask job applicants, prior to the job ~fft;{:r, w:hethedhey .
m'e legaJly au:thorized to wm;k in me United States, and wbefuer tb.~y wil.l ;r.equire
itnmigratiOlL visa spom;o:i:smp fa! employm.ent? Ma:y job ap:plicants be requii:edto, .
sign an attestation to tbis effeot? .
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. . First, please be advised that th~ ose may not gi:ve an adViSOl:Y opicion on a:n.y.set .offact~ ... :'., '"
involving a pa:rti.cular company OI individt¡al. However,I am happy to proYide sOllfe general:.. ' ., .. :.: '
guidelines a:s to fue an:ti.~díscriminationpr.ovisions ofthe lNA (codifiedm 8 U.S,C . .§1324p),
... 1,:' ,
'whlch ose emorces. Tb.ese anti~áiscrimlnation ;provisions prohlbit four types of·conduct (.1) .:,.,,; , .
..·.ci:Jiiensbi:p .Q.d;g;¡;¡pigr.a.ti.o.:ú...sj:~Si!i2~~;g;.G.). n~ªl;9.rlgin. disgri,mination; 'O).unfaU;.......;¡.. ;:..:....:,';'.: .~.:..... .., .
dóoumenterypracüoes dur.ing the émployment eligibili:ty verific.ation (Fo:rm I~9) process
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.
edocument abD:.se")~ and (4) ¡;etaliation fo~ ñling a cha:tge Ol: asserong rigb:ts undet fue.anti.:
discriminationllrovis.ion.
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. . Many offue iS8MS !ais~~:in fue m?t and second sets oí questions p~ovÍded aboye fall ~,,"; ~,,' :..' : " . ,
. within fue purview afilie Department ofHom.eland Security (DES), whlch enforces the law$'
, "
.' related te hiringunauthorized wo:dcersunderlNA-§ 274A, ~ U.S.C. § 1324a, As.suen,I strongly ::..:: ',; l' , .
encourage: you te seek griidance fro:ro DRS's U$, Citizenship'and Jmmigration Seryices (Usas)' ,:.,:;: :' '.'
tbrough its OffiQe ofBusiness Liaison by calling 1·800-35.7-20~9> .OI by fax at (202) 272-1R65. ;:. ;.":.
In. addi:tion~ tb.~ Han.dbookfor Employers¡ Instructionsfor Completing the :fopn 1-9 (Employme"flt ~. ~ .:' '" , .
Eligibility Form) ,publlshedby USCIS) ~ontams él;llSWer:s. to common qu~stiOJlS dealing witb. 1-9 .: ('. .' '.
.completipn and employment eligib;ili.ty yet;ifí.cati?n. f¡. copyof tbis document is available on th~ '. '.' ,.': . .
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authorized. to work; nor would ose :iün:c1 that derrianding to see fue Fo:r:m 1-9 docUrilentation for'.' .... :.
en:¡.ployees provided by a ,staffing agency is a'perse violaüol1 o.fillA- § 274B: Howevet, in doiP,g:, 1 .: •• :
so. emplo.yeIs may Iipt act-in a discriIl;ünatálj :r:g:anner.!l0! treat et1J.pl\Jyees di-sp¡rratelj becaUlle '01. : .:', ", .'
nati.ona1·o~gin. or citiz~nship sta~. Mor~over~ employ~:t:s may be liable for dis~atory
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may hot CD:CUJl1.V~~lts'Verificati.oJ;l. obligations by irea,ting ano emplóyee as anindependén..t .'.. . '. <:' ..... : • ,
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policy~ fue 1-9 mus! 1)(~ co:¡npleted after fue employ~ mak.es a fumjob offel,' and witbin tmee ·da.ys :.•
ofthe commencenient oferoployment. Therefcire,requiring ajob applioant to.attestt? .. "' -' :.;.
employro~nt eligibility prior:to r~c~iving an pffer of eniployment·:roay be impermissible pre-.
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'Screening.. Because discriminatory practices frequently are associated "With pre-screemng, ose'
will investigate an, eroploye¡ for a potential vio1ation ofthe anti-discrimínation provisien ;:>fthe :"..:.
INA whenevet fuere i8 an a:llegation oi pre"8creerring.. Additiona1ly. pre~screening practices :may. ':.' '. . .
be found to violate.tb.e laws that DHS enforce.s. ~ 8 C.F.R, §.274a.2(b) (2Q08)..
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ciiizensbip status discrimib.a:tion, ose recommendsthatyou ask oruy whether fue applicant will.. : ' .": ..,.'
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V.S. Department of Justice
Civil Rights Division
. ,

Office ofSpecial Counselfor lmlnigration-Related
Unfair Employmenl Practices -NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509

BY EMAIL AND FIRST CLASS MAIL

DEC 22 2010

Karl Hq.esgen Jr.
Safety DireCtor
.
Diefenderfer Electrical Ctmtractors, Inc.
P.O. Box. 88
·116 South Second Sto
Allentown, PA 18105
Re: Tec1111ical Assistance Request Pertaining to general contractoi's request for
subcontractor's I-9s and attachments.

Dear Mr. Buesgén.:
This is in response to your email ofNovember 10, 2010 to the Office of Spe.cial
. Counsel for Immigration Related Unfair Employment Practices ("OSC") ..We apologize
. for the delay in responding to yOU! request while we researched the issues you raised.
Specifically, you seek guidance for subcontráctors who are asked·by their general
contractor to provide 1-9
documentation for the subcontractors' employees.
.

.

You pose the following questions: (1) whether it is legal for a subcontractor to
fumish its 1-9 forms and their attachments to a general contractor; (2) ifit is legal,
whether a sub contractor is legally obligated to furnish its 1-9 forros and iheir attachments
to a general contractor; and (3) iflegally obligated,.what attachme11ts· dr back-up
infonnation the subcontraqtor would furnish ~f tile .subcóntractor' did not photocopy the
documents that it verifiedin.the 1-9 process. .
.
As you know, ose investigates allegations of national origin and citizenship
status discrimination in the workplace, as well as over-documentation in the employrnent
eligibility verification process ("document abuse") and retaliation under the anti- .
cllscrimination provision ofthe lrmnigratioll and Nationality Act ("INA"), 8 U.S.C.
§ 1324b. An employer engages in document abuse where it requests more or different
documents :6:om emp~oyees, or refuses to honor .documents that reasonably appear to be
genuine, with the intent to discriminate on the basis of national origin or irnmigration
status. While we cannot give you an advisory opinion on any particular case OI set of
facts, we can direct you to iilformation that the Department ofHOIneland Security
("DHS") has provided and share general information on the INA's anti-discrimination
provlslons.

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Section 274a(b)(5)ofthe Irnmigration and Nationality Act (!NA) limits the use of
. Form 1-9 and any information contained in or appended to the form to purposes of
enforcement ofthe INA and other very limited circumstances: "[The Forro 1-9] and any
infonnation contained in or appended to such fonn, may not be used for purposes other
than for enforcement oftrus chapter and sections 1001, 1028, 1546, and 1621 ofTitle
18." 8 U.S.C. §1324a(b)(5). DHS regulatians also provide that the Form 1-9
information may be used on1y by federal officials for the enforcement ofthe INA or
sections 1001, 1028,)546, ar 1621 oftitle 18 ofthe United 8tates Cade, aJ.ld niay not be
used for any other purpase:
(4) Limitation on·use ofForm 1-9. Any infomiation contained in ar
appended to the Fonn 1-9, including copies or electronic images of
documents listed in paragraph (c) of this section used to verify an
individual's identity or employment eligibility, may be used only for
enforcement oftlle Act aJ.ld seSltions 1001, 1028, 1546, ar 1621 of
title 18, Unit~d States Cade;
8 C.f.R. § 274a.2(b)(4).
.DHS's Office ofU.S. Citizensrup and Immigration Services (USC1S) 6versef;1s fue ..
Forro 1-9 process.USCIS; website (www;uscis.gov) has information regarding
enforcement and privacy of the. employment eligibility verification requir.ements af
8 U.S.C. § 1324a. For further information on disclosure ofForm 1-9 documents, we
suggest that you contact tl;te Verification Division ofUSC{S at.(888) 464-4218.
We hope this information is of assistance to you. If you llave further questions,
do not hesitate to contact OSC on ourtoll-free hotline (1-800-255~8155) or to.visit OSC's
website. We hope yOl,l fmd this infonnationhel:eful, and·thank yo~ for contacting ose.
Sincerely,

Katherine Baldwin
Deputy Special Counsel


Back Wage Policy for Inmate Workers Under the Prison Industry Enhancement
Certification Program (PIECP)
Issued: December 2010
Background:
18 USC 1761 (c), the statute authorizing the Prison Industry Enhancement Certification
Program (PIECP), states that PIECP inmates must “have, in connection with PIECP
work, received wages at a rate which is not less than that paid for work of a similar nature
in the locality in which the work was performed. The Bureau of Justice Assistance (BJA)
1999 PIECP Guideline gives the State wage setting agencies authority to make wage
determinations for PIECP workers that are comparable to those in effect for similarly
situated workers. When a compliance assessment reveals that the wages paid to PIECP
inmate workers are less than the wages approved by the State wage setting agency
(usually the Department of Economic Security or DES), BJA will work with the PIECP
Certificate Holder to determine the extent of the back wages and amounts due, and to
design a compliance plan to ensure the back wages are paid to the workers in question
(where possible), or to an alternate recipient when reasonable efforts have failed to yield
reliable information about the location of released former PIECP workers. Alternate
recipients might include the inmate welfare fund, the victims’ compensation fund to
which PIECP victims’ deductions are usually sent, or any other organization proposed by
the Certificate Holder and agreed upon by BJA.
Policy:
In determining appropriate back wage amounts, the Certificate Holder should calculate
the difference per hour, between the DES approved wage amount ant the actual wage
amount paid to each PIECP worker. Back wages should be calculated for every payroll
period falling within the period of non-compliance. The total amount of back wages
which must be paid equals the cumulative unpaid wages for all of the payroll periods that
fall within the non-compliance time frame.
Regardless of the Cost Accounting Center models in place within the Certificate Holder’s
work pilot project, BJA holds the Certificate Holder as the entity ultimately responsible
for complying with the PIECP wage requirements. The Certificate Holder and proposed
recipient(s) must also agree upon the amount of back wages due. The back wage amounts
must be paid within 90 days of the date when BJA approves of the Certificate Holder’s
identified back wage amounts. If the Certificate Holder continues to operate in noncompliance, after being informed of instances of non-compliance with the PIECP wage
requirements and the back wage policy, and refuses BJA proposed compliance plans,
BJA will take action to terminate the Certificate Holder’s PIECP certification.
Further Information:
For further information on this policy, contact Julius Dupree at Julius.Dupree@usdoj.gov
or 202-514-1928.


U.S. Department of Justice
Federal Bureau of Prisons

PROGRAM STATEMENT
OPI:
CPD/CPB
NUMBER:
5311.01
DATE:
November 15, 2010
EFFECTIVE DATE: February 1, 2011

Inmate DNA Sample Collection Procedures
/s/
Approved: Harley G. Lappin
Director, Federal Bureau of Prisons
1. PURPOSE AND SCOPE
This Program Statement provides procedures for identifying persons in Bureau of Prisons
(Bureau) custody from whom DNA (deoxyribonucleic acid) samples will be collected, as well as
the DNA sample collection procedures, as authorized by current statutes and Federal regulations.
DNA analysis provides a powerful tool for human identification. DNA samples collected from
individuals or derived from crime scene evidence are analyzed to produce DNA profiles that are
entered into the Federal Bureau of Investigation’s (FBI) Combined DNA Index System
(CODIS). The practical uses of the DNA profiles (“genetic fingerprint”) in CODIS are similar to
those of actual fingerprints, such as:
#
#
#
#

Identifying offenders;
Excluding innocent persons;
Solving past and future crimes; and
Combating recidivism through inclusion in the CODIS.

The Bureau’s current authorities to collect DNA samples from persons in Bureau custody are as
follows:
# Title 42 U.S.C. § 14135a, Collection and use of DNA identification information from
certain Federal offenders;
# Title 42 U.S.C. § 14135b, Collection and use of DNA identification information from
certain District of Columbia offenders; and
# Title 28 C.F.R. § 28.12.
Pursuant to these authorities, the Bureau will collect DNA samples from persons in Bureau
custody who are:

# Convicted of any federal offense (felony or misdemeanor);
# Convicted of any Uniform Code of Military Justice (military) offense (felony or
misdemeanor);
# Convicted of a qualifying D.C. Code offense (as provided on a list);
# Arrested or facing charges (pretrial inmates); and
# Non-United States persons who are detained under the authority of the United States
(including the Bureau) (persons who are not United States citizens and who are not lawfully
admitted for permanent residence as defined by 8 C.F.R. § 1.1 (b)).
Additionally, this Program Statement provides guidance on responding to requests from state
and local law enforcement agencies for DNA samples of persons in Bureau custody.
This Program Statement supersedes all previously issued Bureau guidance on DNA sample
collection procedures, and specifically includes the following:
#
#
#
#

Collection of DNA via buccal swab has been incorporated into the collection method.
DNA samples will be collected on qualifying inmates arriving at their designated institutions.
Collection of DNA from juveniles is now permitted.
Staff should use reasonable efforts to confirm an inmate’s claim that he/she has previously
provided a DNA sample pursuant to the DNA Act.
# Bureau staff should assist state, local, and other agencies in collecting DNA from consenting
inmates if certain criteria is met.
# Institution Supplements must be written at each institution to delineate staff responsibilities.
a. Program Objectives. The expected results of this Program Statement are:
# Inmates requiring collection of a DNA sample will be correctly identified and a sample taken
within established time frames, but no later than prior to final institution release.
# Institution departments will work closely with one another to ensure that the DNA sample
collection procedures contained in this directive are strictly followed.
# The Bureau will liaison with other members of the judicial and law enforcement community
to ensure full compliance with applicable statute(s).
2. BACKGROUND
On December 19, 2000, the DNA Analysis Backlog Elimination Act of 2000 (Pub. L. No. 106546) was enacted. That law required the Bureau to obtain a DNA sample from each inmate
convicted of a qualifying offense. The definition of a qualifying offense was subsequently
modified by the USA PATRIOT ACT of 2001 (Pub. L. No. 107-56), the Justice for All Act of
2005 (Pub. L. No. 108-405), section 1004 of the Violence Against Women and Department of
Justice Reauthorization Act, also known as The DNA Fingerprint Act of 2005, (Pub. L. No. 109162) and section 155 of the Adam Walsh Child Protection and Safety Act of 2006 “Walsh Act”
(Pub. L. No. 109-248).

P5311.01

11/15/2010

2

In its current form, the controlling statute authorizes the Attorney General to collect DNA
samples from individuals who are arrested, facing charges, or convicted or from non-United
States persons who are detained under the authority of the United States. See 42 U.S.C. §
14135a(a)(1)(A). The statute also authorizes the Attorney General to “direct any other agency of
the United States that arrests or detains individuals or supervises individuals facing charges to
carry out any function and exercise any power of the Attorney General under this section.” Id.
An implementing rule was published in the Federal Register on December 10, 2008 (Vol. 73,
No. 238, pp. 74932-74943). The FBI analyzes DNA samples and maintains the results in the
Combined DNA Index System (CODIS).
3. COLLECTING DNA SAMPLES
The Warden will appoint an Inmate DNA Collection Coordinator (DNACC), who is a full-time
employee and ordinarily serves at a department head level. The DNACC oversees, monitors,
and trains staff in the DNA collection process at the institution. A multi-disciplinary team will
be established by assigning staff from multiple departments to collect DNA. After the DNACC
receives standardized training in the DNA collection process, the DNACC will train local staff in
the DNA collection process, to include other requirements necessary to accomplish this process
(e.g., fingerprinting, SENTRY instruction for DNA input, etc.).
Bureau staff will collect DNA samples from all Federal code and all military code offenders
(sentenced or detained), and from all non-U.S. citizen detainees who have not had a DNA
sample collected by another Federal law enforcement agency prior to incarceration. DNA
collection also extends to juveniles. DNA samples will also be collected from D.C. Code
offenders in Bureau custody as indicated on the list of qualifying offenses for D.C. Code
offenders, located on the Sallyport site for the Correctional Programs Division, Correctional
Programs Branch, Current Issues Section. The list will be updated periodically to reflect
statutory changes.
a. Initial Designations. Designation and Sentence Computation Center (DSCC) staff review
SENTRY and pertinent documents during initial designation to determine if newly sentenced
offenders have previously submitted a DNA sample to the Bureau or an appropriate arresting
agency. DSCC staff ensure the appropriate DNA SENTRY status is entered into the SENTRY
DNA number field based on a review of the inmate’s pertinent documents as described in
Section 4 (“SENTRY Transaction/Assignment of DNA Number”).
When qualifying inmates (initial designation or pretrial) arrive at their Bureau facility
(designated or assigned, in the case of pretrial), their DNA sample will normally be collected
within 72 hours of their arrival, but no later than 7 days, unless the inmate is not physically in the
institution. Any inmate who is immediately releasing from the institution before the 7-day
period expires will have a DNA sample collected prior to his/her release. The following steps
are performed to collect DNA:

P5311.01

11/15/2010

3

1. Review the incoming movement list to determine which inmates need to submit a DNA
sample.
2. Prior to arrival, review the inmate’s paperwork or their Inmate Load Data in SENTRY
(PP41) to obtain the Social Security number, FBI number, INS number, etc., necessary to
complete the FBI’s National DNA Database Entry Form FD-936.
3. After the inmates arrive and are keyed into the facility, review all inmates who do not
have a SENTRY DNA number and enter a valid DNA status in the SENTRY DNA number
(PP79).
4. For inmates with the SENTRY DNA status of “DNA NEED,” retrieve a Federal Convicted
Offender Program/FBI Buccal Swab Collection Kit. Each DNA kit contains everything
needed to obtain DNA samples. At the time of this Program Statement’s issuance, each kit
contained:
#
#
#
#
#
#
#
#
#

1 request for National DNA Database Entry Form (FD-936).
2 EasiCollect TM buccal collection devices.
2 Collection device envelopes.
1 Buccal collection instructions.
1 sterile gauze pad.
1 pair of nitrile (latex-free) gloves.
1 pre-inked fingerprint pad.
2 clean wipes for ink removal.
1 kit return envelope.

5. Complete the FD-936 form and insert it into each kit. Detailed instructions on how to
properly complete the form and process the kit are located on the back of the form.
Complete sections 1-3 of the FD-936. This can be done ahead of time; however, the
FD-936 stays with the kit it was taken from.
6. Take fingerprints from both the left and right index fingers. Have the inmate ink the
index finger (pre-inked finger pads provided) and roll it on the FD-936 in the required
spaces. If necessary, there are additional fingerprint sections on the back of the form.
The staff member rolling the fingerprint must sign in the appropriate box in the
fingerprint collection section.
7. Perform the buccal swab collection and, once dry, place each collection device in a
collection device envelope. Complete section 4 of the form with staff name and signature.
Place the saliva samples and form in the mailing envelope.
8. Use the Update Inmate Identification Numbers transaction in SENTRY (PP79) to generate a
DNA number. On the PP79, key the inmate name and number, enter “DNA” in the ID Type,
“NEXT” in the ID Number, and “ADD” in the function. When entered, a DNA number will

P5311.01

11/15/2010

4

be automatically generated by SENTRY. This DNA number is the next sequential number
associated with the keying facility (e.g., SDC00124), and the keying facility must have
custody of the inmate at the time the number is generated. This function must not be
performed prior to collection as it signifies the specimen has been collected. The PP79
transaction should be done immediately after the sample is collected to ensure the
corresponding DNA number is accurate. Write the number on the top of form FD-936.
9. Seal the form and saliva specimens in the mailing envelope provided in the test kit. Mail via
U.S. Mail, no later than during the next business day after collection.
10. If an inmate refuses testing, refer to Section 5 of this Program Statement.
b. Inmates Currently in Their Designated Facilities. Unit staff review the DNA status of
inmates in custody at their Initial Classification, the inmate’s next Program Review, or
immediately if the inmate’s release is imminent (see next paragraph). When staff determine an
inmate must provide a DNA sample, the appropriate code is entered into SENTRY.
To ensure no inmate is released without a DNA assignment, unit staff review and update
SENTRY data as described in Section 4 (“SENTRY Transaction/Assignment of DNA Number”)
at least 60 calendar days prior to the inmate’s projected release date or Residential Reentry
Center (RRC) transfer date. Ordinarily, DNA samples for inmates housed at an RRC are
collected by the supervising agency once the inmate is released to supervision.
Any new information received after the initial review regarding an inmate with a DNA status of
N/A (Not Applicable), N/A JFA (Not Applicable – Justice for All Act), N/A DC (Not Applicable
– District of Columbia) or N/A OTHER (Not Applicable – Other) should be reviewed again in
conjunction with the inmate’s regular Program Review, or immediately if the inmate’s release is
imminent.
c. Staff Responsibilities. Staff run a weekly SENTRY roster to determine which inmates
require DNA sample collection. Inmates with imminent projected release or RRC placement
dates should be expedited for sampling. Ordinarily, a sample on an inmate with an imminent
release date should be obtained no later than 7 calendar days before his/her release. Staff also
execute the “Update Inmate Identification Number” transaction (PP79) immediately after a
sample is taken and ensure that the transaction successfully generates a number for that inmate.
The number is written on the form that accompanies the DNA sample after it has been generated
by SENTRY. Note: Staff should not try to predict the next number that will be generated and
perform the SENTRY transaction at a later time.
Once the sample is collected, staff complete the SENTRY transaction, outlined in Section 4,
prepare the FBI forms, package the specimen and form(s) in the envelope provided by the FBI,
and mail the envelope per local procedures, ordinarily within 24 hours of collection.
Staff (or qualified contract staff), as outlined in the Institution Supplement, perform DNA

P5311.01

11/15/2010

5

sample collections using collection kits provided by the FBI. Orders for kits can be placed with
the Federal Convicted Offender Program. DNA samples collected by the Bureau are furnished
to the FBI, or to other agencies or entities authorized by the Attorney General, for analysis and
entry into the Combined DNA Index System (CODIS).
4. SENTRY TRANSACTION/ASSIGNMENT OF DNA NUMBER
An inmate’s DNA status is reflected in the Inmate DNA Number History transaction in
SENTRY (PP85). An inmate’s DNA status is updated, and DNA numbers are generated, using
the Update Inmate Identification Numbers (PP79) transaction in SENTRY.
a. If the inmate has been reviewed previously and has had a DNA sample collected at a Bureau
institution, a DNA number will be associated with the inmate; e.g., LVN00001. Another
DNA sample is not required.
b. If there is documentation that an inmate had a DNA sample collected upon arrest, staff
initiate an “Update Inmate Identification Numbers” (PP79) transaction (ADD function), and
enter “DNA” in the ID Type field and “PREBOP TST” in the ID Number field. Another
DNA sample is not required. Note: When adding a DNA status, any previously existing
status in the inmate’s DNA ID Number field must first be deleted using PP79’s DEL
function.
c. If there is no information on the Inmate DNA History screen or if the inmate has been
reviewed previously and was given a DNA status of “N/A” or “N/A JFA,” staff review the
inmate’s documents to determine if he/she is a Federal or military inmate. If so, staff initiate
an “Update Inmate Identification Numbers” transaction and enter “DNA” in the ID Type
field and “NEED” in the ID Number field using the ADD function. Note: When adding a
DNA status, any previously existing status in the inmate’s DNA ID Number field must first
be deleted using PP79’s DEL function.
d. If the inmate has a current or past conviction for a qualifying D.C. Code offense, staff initiate
an “Update Inmate Identification Numbers” transaction and enter “DNA” in the ID Type
field and “NEED” in the ID Number field using the ADD function. Note: When adding a
DNA status, any previously existing status in the inmate’s DNA ID Number field must first
be deleted using PP79’s DEL function.
e. If an inmate was sentenced by the D.C. Superior Court and he/she does not have a current or
past conviction for a qualifying D.C. Code offense, staff initiate an “Update Inmate
Identification Numbers” transaction and enter “DNA” in the ID Type field and “N/A DC” in
the ID Number field using the ADD function. Note: When adding a DNA status, any
previously existing status in the inmate’s DNA ID Number field must first be deleted using
PP79’s DEL function.

P5311.01

11/15/2010

6

f. If an inmate is solely serving a state sentence or is not required by Federal law to provide a
DNA sample, staff initiate an “Update Inmate Identification Numbers” transaction and enter
“DNA” in the ID Type field and “N/A OTHER” in the ID Number field using the ADD
function. Note: When adding a DNA status, any previously existing status in the inmate’s
DNA ID Number field must first be deleted using PP79’s DEL function.
g. If an inmate states he/she has previously submitted a DNA sample, staff initiate an “Update
Inmate Identification Numbers” transaction and enter “DNA” in the ID Type field and
“PREBOP PND” in the ID Number field and ADD in the function. See Section 7 of this
Program Statement. If staff are able to verify that a DNA sample has been taken, staff
initiate an “Update Inmate Identification Numbers” transaction and enter “DNA” in the ID
Type field and “PREBOP TST” in the ID Number field and ADD in the function. If staff are
unable to verify that a DNA sample has been taken, staff initiate an “Update Inmate
Identification Numbers” transaction and enter “DNA” in the ID Type field and “NEED” in
the ID Number field and ADD in the function. See Section 7 for further instruction. Note:
When adding a DNA status, any previously existing status in the inmate’s DNA ID Number
field must first be deleted using PP79’s DEL function.
h. Any new information received after the initial review of an inmate resulting in a DNA status
of N/A or N/A OTHER should be reviewed again in conjunction with the inmate’s regular
Program Review, or immediately if the inmate’s release is imminent.
i. Upon completion of the DNA sample collection, staff update the inmate’s DNA status in
SENTRY, via the “Update Inmate Identification Numbers” transaction. Using the “ADD”
function, enter “DNA” in the ID Type field and “NEXT” in the ID Number field. SENTRY
then replaces the inmate’s DNA status (shown as NEED) with a system-generated number
specific to each institution (e.g., LVN00001). This number serves as the inmate’s DNA
number throughout his/her incarceration. The DNA number is also recorded by staff in the
Laboratory Accession Log, along with the inmate’s name, register number, and date the
sample was collected.
5. INMATES WHO REFUSE DNA SAMPLE COLLECTION
Inmates who refuse to provide a DNA sample must first be counseled by appropriate staff
(Psychology Services, unit staff, etc.) regarding their obligation to provide a sample and the
possible consequences of non-compliance. Counseling must be provided in a format appropriate
in content and vocabulary to the inmate’s education level, literacy, and language.
Documentation of these efforts is kept in the Inmate Central File. Consequences for refusing to
provide a DNA sample include an incident report(s), progressive administrative sanctions, and
possible criminal prosecution. See 42 U.S.C. § 14135a(a)(5).
At facilities where Health Services responsibilities have been contracted to private providers, the
person(s) responsible for contract oversight are also responsible for writing incident reports for
inmates who refuse sampling. At institutions where only DNA testing has been contracted out,

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the staff member counseling the inmate is responsible for writing incident reports for inmates
who refuse sampling. In all other cases, the staff member collecting the DNA sample is
responsible for writing incident reports for inmates who refuse sampling after initial counseling.
If an inmate continues to refuse to submit to DNA sampling, progressive sanctions should
continue. If these efforts fail, or the inmate is approaching his/her release date, standard “use of
force” protocols (including standard confrontation avoidance procedures) must be invoked, using
only the amount of force necessary to obtain a DNA sample. In instances where calculated use
of force is necessary, it is recommended that a blood sample be obtained. In any instance where
use of force is necessary, Bureau staff collect the DNA sample (not contractors) .
6. INMATES IN CONTRACT FACILITIES
Community Corrections staff liaison with state and local officials to coordinate the collection
and submission of DNA samples in conjunction with existing requirements of the contract or
agreement. If state or local officials are unable or unwilling to collect the DNA sample, staff
should contact the Community Corrections and Detention Services Branch, Correctional
Programs Division, Washington, D.C., for assistance. The Privatization Management Branch
will communicate the collection procedures in this Program Statement to all private facilities
that confine inmates for the Bureau and make any necessary changes to the contracts with those
facilities.
7. VERIFICATION OF PREVIOUS DNA COLLECTION
If an inmate states he/she has previously had a DNA sample collected pursuant to the DNA Act,
staff use reasonable efforts to contact the appropriate agency and confirm the claim. Staff
document the results of this inquiry on the Inmate Activity Record (BP-A0381) in Section 2 of
the inmate’s Central File. Once the information is received, it is filed in Section 5 of the
inmate’s Central File. If it cannot be determined with certainty that an inmate has previously
submitted a DNA sample, staff collect another DNA sample. See 42 U.S.C. § 14135a(a)(3).
Unusual circumstances or difficulties in obtaining verification of pre-commitment DNA
sampling are reported to the Correctional Programs Branch Administrator, Correctional
Programs Division, Central Office, Washington D.C.
8. CONTACT WITH U.S. PROBATION OR COURT SERVICES AND OFFENDER
SUPERVISION AGENCY
For inmates who have provided DNA samples while in Bureau custody who are releasing to the
supervision of U.S. Probation or Court Services and Offender Supervision Agency, unit staff
convey their DNA status via the Notice of Release and Arrival (BP-A0714).

9. OTHER REQUESTS TO COLLECT DNA SAMPLES

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Institutions should agree to obtain an inmate’s DNA sample on behalf of a state or local law
enforcement agency, a state criminal court, a family court, or other appropriate requestor(s), if
the entity provides the collection supplies, a written request, and the inmate consents to
providing the sample. Staff should not forcibly attempt to obtain DNA samples under these
circumstances if an inmate refuses to consent.
10. INSTITUTION SUPPLEMENT
Each institution will develop local procedures and guidelines required to administer this program
statement in an Institution Supplement which is negotiable at the local level, in accordance with
the Master Agreement. The institution supplement will include, at a minimum, the following
considerations:
# Multi-disciplinary teams.
# Training of staff on DNA collection process.
# Notification to inmates, written in English and Spanish.
The Institution Supplement will be available in English and Spanish.
11. INFORMATION AND ASSISTANCE
Staff in the Correctional Programs Branch are available to answer questions and provide
assistance regarding DNA collection procedures. Contact information will be published on the
Bureau’s Sallyport website.
REFERENCES
Federal Statutes
# Title 42 U.S.C. § 14135a
# Title 42 U.S.C. § 14135b
Federal Regulations
# Title 28 C.F.R. 28.12
Records Retention Requirements
Requirements and retention guidance for records and information applicable to this program are
available in the Records and Information Disposition Schedule (RIDS) on Sallyport.

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9


U.S. Department of Justice
Civil Rights Division
Office ofSpecial Counselfor lmmigration-Related
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509

October 4, 2010
V1A FASC1M1LE (787) 274-1470
Katherine González Valentín, Esq.
Pietrantoni Mendez & Alvarez LLP
Banco Popular Center, Suite 1901
209 Muñoz Rivera Avenue
Hato Rey, PR 00918

Dear Ms. González Valentín:
This responds to your letter dated September 1, 2010, to the Office of Special Counsel for
1mmigration Related Unfair Employment Practices (OSC). y ou seek guidance about Puerto
Rico Act No. 191 1 (Act 191), which invalidates certain birthcertificates issued before July 1,
2010. In your letter, you ask whether an employer may violate the 1-9 Form requirements under
the 1mmigration and Nationality Act (INA) ifit knowingly accepts an invalid Puerto Rico birth
certificate issued before July 1,2010. You also ask whether an employer may violate the anti
discrimination provision ofthe INA, 8 U.S.C. § 1324b, ifit only accepts Puerto Rico birth
certificates issued afier July 1,2010.
OSC enforces· the anti-discrimination provision ofthe INA, 8 U.S.C. § 1324b. The anti
discriniination provision prohibits four types of employment-related discrimination: citizenship
'or immigration status discrimination; national origin discrimination; unfair documentary
practices during the employment ellgibility verification Form 1-9 process (document abuse); and
retaliation forfiling a charge, assisting in an investigation, or asserting rights under the anti
discrimination provision. The document abuse provision ofthe INA prohibits an employer from
requesting more or different documents or rejecting valid employment eligibility verification
documents with the intent to discriminate on the basis of national origin or citizenship status.
8 U.S.e. § 1324b(a)(6). Although OSC cannot comment on any particular case or set.offacts,
we can share with you general information regarding requirements under the anti-discrimination
.
provision ofthe INA.
U.S. Citizenship and Immigration Services (USC1S) is the federal agency charged with
providing guidance on proper 1-9 Form procedures. Accordingto a USCIS press release dated
September 30, 2010, "Puerto Rico birth certificates issued prior to July 1, 2010, will no longer be

1 "Act to Prohibit the Retention, Keeping on Record, and Keeping under Custody of Certified Copies ofBirth
Certificates," Law 191 of2009, as Amended.

acceptable as Form 1.,.9 List C docillnents beginning October 30, 201.0.,,2 Therefore, afier
October 30, 2010, if an employee presents a birth certificate issued by the Commonwealth of
Puerto Rico during the Form 1-9 process to establish his or her employment authorization, the
employer is required to look at the date on which the birth certificate was issued to ensure that it
is valid, i.e., issued on July 1,2010 or later. 3 Under this scenario, if an employer consistently
rejects Puerto Rico birth certificates issued prior to July 1,2010, without regard to citizenship
status or national origin, it is unlikely that the employer will be found by OSC to have violated
the anti-discrimination provisicin.
For more information about Form 1-9 you may visit USC1S's website at www.uscis.gov.
For more information about Puerto Rico birth certificates you may visit the government of
Puerto Rico's website at http://www2.pr.gov/prgovEN/Pages/BirthCertifcateInfo.aspx.

atherine A. Baldw
Deputy Special Counsel

2 See the attached update circuIated by the U.S. Citizenship and Irnmigration Services, Office of Cornmunications,

"Puerto Rico Birth Certificates Issued Before JuIy 1, 2010 Now Valid through Oct 30, 2010," dated September 30,
2010,' availabIe at
http://www. uscis. gov/portallsite/uscis/menuitem. 5 af9bb95 919f3 5 e66f61417 6543 f6d1 a/?vgnextoid=85 ab7 848 8626b
210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD

3M

.