September 30, 2013 IER Technical Assistance Letter on sponsoring individuals for visas

U.S. Department of Justice
Civil Rights Division
Office of Special Counselfor Immigration-Related
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
September 30, 2013
Via Email (lcooney@balglobal.com)
Liane Hicks Cooney, Esq.
Berry Appleman & Leiden LLP
7901 Jones Branch Drive, Suite 320
McLean, YA 22102
Dear Ms. Cooney:
This is in response to your email dated August 6, 2013. We apologize for the delay in
our response. In your email, you ask whether an employer in the following situation should be
concerned about engaging in a discriminatory hiring decision: "US Company frequently hires
foreign nationals and sponsors them for Hand L visas when needed. A foreign national
candidate ,applied for a position, but the company does not believe the candidate is appropriate
for the role offered and does not wish to sponsor an H-1B petition for this particular job
opening. May the company decline to extend an offer to a candidate because visa petition
sponsorship would be required, although it does file immigration petitions for other positions
within the organization?"
The Office of Special Counsel for Immigration-Related Unfair Employment Practices
("OSC") investigates and prosecutes employers charged with national origin and citizenship
status discrimination, as well as over-documentation in the employment eligibility verification
process ("document abuse") and retaliation under the anti-discrimination provision of the
Immigration and Nationality Act ("INA"), 8 U.S.C. §1324b. For more information on OSC,
please visit our website at: www.iustice.gov/crt/about/osc.
Please note that OSC cannot provide an advisory opinion on any specific case or set of
facts. However, we can provide general guidelines as to the coverage of the statute and the
legality of various pre-employment inquiries under the anti-discrimination provision of the INA,
8 U.S.C. § 1324b.
In your email, you state that the company does not believe the candidate is "appropriate"
for the role offered. It is unclear whether the company has determined the candidate to be
unqualified for the position. In order to establish a prima facie case of citizenship status or
national origin discrimination in hiring, there must a showing that the (1) applicant is a member
of a protected class; (2) the applicant suffered an adverse employment action; (3) the applicant
was qualified for the position and (4) the position remained open or was filled by similarly
qualified applicants outside the protected class. Hill v. Lockheed Martin Logistics Mgmt., 354
FJd 277,285 (4th Cir. 2004) (en banc). Furthermore, individuals protected from citizenship

status discrimination are limited to U.S. citizens, certain lawful permanent residents, asylees and
refugees. 8 U.S.C. §1324b(a)(3). 	Therefore, an individual with or seeking an H-IB visa would
not be able to establish a prima facie case of citizenship status discrimination because that
individual is not in the protected class, and a company can choose not to employ a person
because that individual requires visa sponsorship. 	See
http://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY20 13/171.pdf;
http://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY20 12/157 .pdf.
Please also note that although all work-authorized individuals are protected from national
origin discrimination under the anti-discrimination provision, Salazar-Castro v. Cincinnati
Public Schools, 3 OCAHO No. 406 (1992), only employers with between four and 14 employees
are covered under the anti-discrimination provision. Id. Therefore if an applicant who was
rejected for employment files a charge of national origin discrimination with OSC, the office
would typically lack jurisdiction to investigate if the employer has 15 or more employees.
Individuals claiming national origin discrimination against larger employers may file a charge
with the Equal Employment Opportunity Commission, which has jurisdiction to investigate
employers with 15 or more employees.
We hope you find this information helpful.
Sincerely,
SeemaNanda
Deputy Special Counsel
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