On April 18, the U.S. Department of Justice (DOJ) announced that it had reached a settlement with General Motors (GM) to resolve allegations of discrimination in the Form I-9 completion process. DOJ alleged that GM required employees to present an unexpired foreign passport as part of the Form I-9 completion process, ostensibly in an effort to comply with its export control regulations.

Several statutes control the release of data to non-U.S. persons. Some foreign nationals, due to their country of citizenship, are barred from possessing certain information and others require the employer to apply for an export license to be able to possess certain information. The export control regime thus requires employers to conduct a proper export control and screening assessment during the hiring and onboarding process.

However, as demonstrated by the settlement, the export control and screening assessment cannot be combined with the Form I-9 completion process due to the Immigration and Nationality Act's (INA) prohibition on asking for certain documents from the employee. Federal law allows workers to choose which valid, legally acceptable documentation to present to demonstrate their identity and permission to work.

To assist employers in reconciling these conflicting regulations the DOJ provided a fact sheet for employers. This topic has also been the subject of prior Technical Assistance Letters (TAL) by DOJ, available here, here, and here.

This action by DOJ underscores the importance of having a Form I-9 compliance plan in place, conducting training pursuant to that plan, and annually evaluating your Form I-9 compliance plan.

Posted: April 24, 2023

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