April 9, 2013 IER Technical Assistance Letter on hiring preferences

U.S. Department of Justice
Civil Rights Division
Office 0/ Special Counsel/or Immigration-Related
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
April 9, 2013
Via E-Mail (jwalstad@usbr.gov)
J esse Walstad
Human Resources Program Management
Bureau of Reclamation
Denver Federal Center
Dear Jesse Walstad:
Thank you for contacting the Office of Special Counsel for Immigration-Related Unfair
Employment Practices ("OSC"). 	We apologize for the delay in our response. 	This letter is in
response to the e-mail you sent OSC on January 30, 2013, in which you inquire whether the
following 	statement contradicts 	the 	anti-discrimination provision 	of the 	Immigration 	and
Nationality Act ("INA"), as amended, 8 U.S.C. § 1324b: "On an individual basis, you may
legally prefer a U.S. citizen or noncitizen national over an equally qualified alien to fill a specific
position, but you may not adopt a blanket policy of always preferring citizens over noncitizens."
Specifically, you ask whether a federal agency employer can legally prefer a U.S. citizen over an
equally qualified non-citizen in the absence of express statutory authority to do so. You also ask
whether an employer can ask "for 1-9 data prior to offering a position."
Although OSC cannot give you an advisory opinion on any set of facts involving a
particular individual or company, we are pleased to provide some general guidelines regarding
compliance with the anti-discrimination provision of the INA. Please visit our website as well at
http://www.iustice.gov/crt/about/osc/, 	or 	call 	our 	employer 	hotline 	at 	800-255-8155 	for
additional guidance.
The INA prohibits citizenship status discrimination with respect to hiring, firing, and
recruitment or referral for a fee, by employers with more than three employees. This means that
employers may not treat individuals differently be"cause of their citizenship status or immigration
status. 	The INA specifically authorizes all employers to prefer a U.S. citizen over an equally
qualified non-U.S. citizen:
Notwithstanding 	any 	other 	prOVlSlOn 	of this 	section, 	it 	is 	not 	an 	unfair
immigration-related employment practice for a person or other entity to prefer to
hire, recruit, or refer an individual who is a citizen or national of the United States
over another individual who 	is 	an alien if the two individuals are equally
qualified.
8 U.S.C. § 1324b(4).

The above-quoted provision applies to all employers covered by 8 U.S.C. § 1324b.
However, section 1324b does not cover federal agencies (except for an agency that has waived
sovereign immunity). 	See Office of Legal Counsel, Memorandum Opinion for the General
Counsel, 6 U.S. Op. Off. Legal Counsel 121, 1992 WL 881060 (0.L.c.) (August 17, 1992)
(finding that, because section 1324b does not contain an express waiver of sovereign immunity,
federal agencies are generally not subject to the prohibitions of that section). Additionally, under
Executive Order 11935, federal agencies are expressly authorized to make hiring restrictions
based on U.S. 	citizenship. 	See 	Executive 	Order 11935 (September 2, 	1976) (restricting
employment of non-citizens in competitive service positions). 	As a result, federal agencies are
permitted to prefer U.S. citizens to non-U.S. citizens, whether or not the individuals are equally
qualified.
With respect to your last question, you may not ask for 1-9 information prior to an offer
of employment. 	Publicly available 	guidance 	issued by 	U.S. 	Citizenship and 	Immigration
Services ("USCIS"), the agency that publishes the 1-9 Form, states: "The law requires that you
complete Form 1-9 only when the person actually begins working for pay. 	However, you may
complete the form earlier, as long as the person has been offered and has accepted the job. You
may not use Form 1-9 to screen job applicants." 	Handbook for Employers: Guidance for
Completing Form 109, available at www.uscis.gov/files/form/m-274.pdf.p.41.This rule applies
to all employers, including federal agencies.
We hope this information is of assistance to you. 	Please feel free to contact us through
our toll free number at 800-255-8155 if you have any further questions.
Sincerely,
Seema Nanda
Deputy Special Counsel