Under the terms of a new agreement between the U.S. Department of Labor and the Immigration and Naturalization Service, the DOL will no longer inspect I-9 employment eligibility verification forms when it goes to a workplace to investigate a labor standards violation and the investigation is based on a worker’s complaint.   This new memorandum of understanding (MOU), which was signed Nov. 23, 1998, replaces an MOU that had been in effect since 1992 and that had been criticized by immigrants’ and workers’ rights advocates since its inception (see "Law Students File Petition under NAFTA Challenging Collaboration between DOL and INS").

Under the old MOU, the DOL was required to inspect I-9 forms whenever it conducted a labor standards investigation.  If the DOL’s investigation uncovered evidence of unauthorized employment, the agency was required to refer the case to the INS. Under this policy, an undocumented worker who filed a minimum wage or overtime complaint with the DOL risked triggering a referral to the INS and eventual deportation.  This clearly put a chilling effect on the ability of workers and their advocates to file wage complaints with the DOL.

The new MOU does not eliminate DOL involvement in inspections of I-9 forms.  The DOL will continue to inspect the forms and make referrals to the INS in "directed" investigations of certain targeted industries.  However, under the terms of the new MOU, the DOL will not conduct inspections of I-9 forms in cases where a labor standards investigation is based on a worker complaint.  In the language of the new MOU, this limitation "is intended and will be implemented so as to avoid discouraging complaints from unauthorized workers who may be victims of labor standards violations by their employer."  While it is problematic that there will continue to be collaboration, albeit more limited, between the DOL and the INS, the new policy represents a significant improvement over the former policy.