June 15, 2016 IER Technical Assistance Letter on hiring practices and non-immigrant visa holders

U.S. Department of Justice
Civil Rights Division
Office of Special Counsel for Immigration-Relared
Unfair Employment Practices -NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
June 15, 2016
Sent via E-Mail (Christopher.Thomas@ogletreedeakins.com)
Christopher L. Thomas
Wells Fargo Center
1700 Lincoln Street, Suite 4650
Denver, CO 80203
Dear Mr. Thomas:
This is in response to your email dated May 25, 2016, to the Office of Special Counsel for
Immigration-Related Unfair Employment Practices ("OSC" or "Office"). In your email, you seek this
Office's views on whether it is permissible for employers to ask the following questions of job
applicants:
A. Do you now, or will you in the future, require sponsorship (e.g., I-I-lB visa status, etc.) to
work legally for THE COMPANY in the United States?
B. If you will require sponsorship, do you currently hold Optical Practical Training (OPT)?
C. If you currently hold OPT, are you eligible for a 24-month extension of your OPT, based
upon a degree from a qualifying US institution in Science, Technology, Engineering, or .
Mathematics (STEM), as defined by Immigration & Customs Enforcement (and as outlined
in the following government website:
https ://www.ice.govIsites/default/files/documents/Document/2016/stem-list. pdf?
In your email, you explain that "a negative answer to the third question would be reason for
disqualification." You would like our Office to address whether this series of questions would run afoul
of the anti-discrimination provision of the Im1nigration and Nationality Act (INA), which this Office
enforces.
OSC cannot provide an advisory opinion on any set of facts involving a particular individual or
entity. However, we can provide some general guidance regarding employer compliance with the anti
discrimination provision of the INA. The anti-discrimination provision prohibits the following types of
employment-related conduct: (1) national origin, citizenship, or immigration status discrimination in
hiring, firing, or recruiting or referral for a fee; (2) unfair documentary practices during employment
eligibility verification (generally, the Form I-9 and E-Verify processes) ("document abuse"), which
includes requesting more or different documents than required for employment eligibility verification
because of an individual's citizenship, inlmigration status, or national origin; and (3) retaliation for filing
a charge, assisting in an investigation, or asserting rights under the anti-discrimination provision.
· 8 U.S.C. § 1324b. For more information about OSC, please visit our website at:
http://www.justice.gov/crt/about/osc.

As you know, the statute prohibits denying protected individuals employment because of their
real or perceived immigration or citizenship status. U.S. citizens and nationals, refugees, asylees, and
recent lawful permanent residents are protected from citizenship status discrimination in hiring under the
INA. Accordingly, an employer that asks all of its job applicants whether they will require sponsorship
now or in the future and refuses to hire those who require sponsorship would likely not violate 8 U.S.C.
1324b. Similarly, an employer that asks questions designed to prefer certain classes of nonimmigrant
visa holders (e.g., STEM OPT students) over other classes of nonimmigrant visa holders is unlikely to
violate the INA's prohibition against citizenship status discrimination. Cf Letter from Alberto
Ruisanchez, Deputy Special Counsel, OSC to Angelo A. Paparelli, Seyfarth Shaw LLP (Apr. 30, 2014),
available at https ://www. justice. go'vIsites/default/files/crt/legacy/2014/05/06/180. pdf (company unlikely
to violate the anti-discrimination provision when rejecting applicant based on remaining time left on
OPT visa since F-1 visa holders are not protected from citizenship status discrimination). However,
asking job applicants detailed questions about their immigration or citizenship status may deter
individuals who are protected from citizenship status discrimination, such as refugees and asylees, from
applying due to a misunderstanding about their eligibility for the position. Therefore, we caution
employers against asking detailed questions pertaining to status that may lead to such confusion.
In addition, all work-authorized individuals are protected from national origin discrimination
under the anti-discrimination provision. Accordingly, individuals who believe that they were not hired
based on national origin-for example, their country of origin, accent or appearance-may allege
discrimination on this basis. As you may know, OSC has jurisdiction over national origin claims
involving entities with between four and 14 employees, whereas the Equal Employment Opportunity
Commission (EEOC) has jurisdiction over claims involving employers with 15 or more employees. For
more information about national origin discrimination liability for employers with 15 or more
employees, you may wish to contact the EEOC at 1-800-669-4000 (TTY 1-800-669-6820) or visit the
EEOC's website at www.eeoc.gov.
We hope that this information is helpful.
Sincerely,
Deputy Special Counsel