Form I-9 Requirements - Subcontractors & General Contractors

The Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), has issued an advisory opinion with regard to how far a general contractor may go in seeking employment verification documents from the employee of a subcontractor. The answer, in OSC’s view, is not very far.

An employer had asked OSC for an advisory opinion as to whether a general contractor may ask the employee of its subcontractor to produce the original employment verification documents already provided to the subcontractor at the time of hire for I-9 verification purposes. The time of hire may have been recently, or in the distant past.

Because of the nature of employment verification documents, OSC concluded that a subcontractor’s employee may have a valid reason to no longer possess the original I-9 documents when the general contractor asks for them. For example, the documents may have been lost, stolen, or misplaced. Inasmuch as the employee had met his burden of proof at the time of hire, the employee could perceive discriminatory conduct, based on citizenship or immigration status, by the general contractor were the individual denied employment as a result. OSC therefore recommended that general contractors avoid this practice.

This OSC view renders more difficult the ability of general contractors to confirm after hire the employment authorization of their subcontractors, often a requirement imposed by the general contractor’s customer.

Categories: Employer Compliance