August 19, 2010 IER Technical Assistance Letter on contractor assignments

U.S. Department of Justice
Civil Rights Division
Office ofSpecial Counselfor Immigration-Related
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
August 19, 2010
Via E-mail rchandler@scmIlp.com
Robert Chandler, Esq.
Stoneman, Chandler & Miller LLP
99 High Street, Suite 1610
Boston, MA 02110
Dear Mr. Chandler:
Thank you for contacting the Office of Special Counsel for Immigration-Related Unfair
Employment Practices. This e-mail is in response to your letter dated July 1,2010. In your
letter, you state that your c1ient is a company that manufactures castings for a defense contractor.
y ou c1aim that the defense contractor is requiring that the quality control inspectors assigned by
your c1ient to work under the contract be U.S. citizens. These quality control inspectors are hired ,
to check castings against the contractor's drawings. You further state that there may be a
contract between the government and the defense contractor imposing such a U.S. citizenship
requirement, but your client does not have access to that contract. Accordingly, you ask whether
the statutory exception to the citizenship status discrimination prohibition under the anti- 	-:
discrimination provision ofthe Immigration and Nationality Act (!NA), 8 U.S.C. 	¿
§ 1324b(a)(2)(C), allows your c1ient to legally comply with the defense contractor's request.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices
("OSC") enforces the anti-discrimination provision ofthe !NA. OSC's mission is to protect
work-authorized individual s from employment discrimination based on citizenship status,
national origin, over documentation in the employment eligibility verification (Form 1-9) process
(document abuse), or retaliation for filing a charge or asserting their rights under the anti
discrimination provision.
This Office cannot give you an advisory opinion on any set of facts involving a particular
individual or company. However, we can provide sorne general information regarding pre
employment inquiries and procedures under the anti-discrimination provision ofthe!NA. The
!NA permits employers to discriminate on the basis of an individual' s citizenship or immigration
status when required for compliance with "law, regulation, or executive order, or required by
Federal, State, or local government contract." 8 U.S.C. § 1324b(a)(2)(C).
We have attached previously issued technical assistance letters addressing this topic. As
explained in the letters dated February 29,2000, and October 3,2002, in order for a U.S. citizen
requirement to satisfy the exemption found in the anti-discrimination provision ofthe !NA, an

employer must show that it is required to discriminate en the basis of citizenship status fo! the
specific position at issue. Factors that come into play in determining whether citizenship status
discrimination is required for a particular position include the express language of the restriction
at issue, the employee's position, and the type ofwork performed by the employee. Thus,
employers must examine the applicable law, regulation, executive order or contract to determine
whether it requires the employer to restrict employment for a specific job en the basis of
citizenship status. For more information regarding the defense contractor's U.S. citizenship
requirement, you may wish to contact that company's contracting officer.
If you have any questions or need additional information regarding immigration-related
unfair employment practices, please contact OSC at 1-800-255-8155 or visit our website at
www.justice.gov/crt/osc.
Sincerely,
Katherine A. 	ldwin
Deputy Special Counsel
Enclosures

U.S. Department oC Justice
Civil Rights Division
Special Counsel for lmmigrulioll Relared
Ullfair Employmenr Practices - NYA
.950 PetUls)'lvania .4vtnue, N. W.
Washington, DC 20530
October 3,2002
Re: Advisory Opinion Reguest
Dear_
Thank you for your letter seeking guidance concerning the exceptions to the citizenship
status discrimination prohibition under the anti-discrimination provision ofthe Immigration and
Nationality Act (INA), 8 U.S.C. § 1324b(a)(2)(C). We apologize for our delay in responding.
This Office cannot give you an advisory opinion on any particular case of alleged
discrimination, or on any set of facts involving a particular individual or company. However, we
. can provide sorne general guidelines as to the legality of various pre-employment inquiries and
procedures under the anti-discrimination provision of the Immigration and Nationality Act
([NA), 8 U.S.C. § 1324b.
As you describe in your letter, the INA permits employers to discriminate on the basis of
an individual's citizenship or immigration status when required for compliance with law,
regulation, exeeutive order, or government contraet. 8 U.S.C. § 1324b(a)(2)(C). The INA also
permits citizenship status discrimination when the Attorney General determines that such
discrimination is "essential for an employer to do business with an agency or department of the
Federal, State, or local government." Id.
To avail itself ofthese exceptions, an employer must show that it is required to
discriminate on the basis of citizenshíp status for the specific position at issue. The employer
must examine the applicable law, regulatíon, exeeutive order or contraet to determine whether it
requires the employer to restríet employment for a specífic job on the basis of citizenship or

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immigration status. An employer is notjustified in limiting a position to only U.S. citizens if a
government contract does not prohibit the hiring or access ofnon-U.S. citizens, but rather sets a
heightened level ofbackground review for non-U.S. citizen employees to have access to
restricted information.
A U.S. citizen requirementfor specific jobs does notjustify a blanket U.S. citizens-only
policy for alljobs. Thus, technical staffworking on other contracts, cafeteria workers, and other
employees, for example, who do not work in the specific position covered by the restriction, are
not subject to the non-citizen bar. An employer should consider the following facts when
determining whether citizenship status discrimination is required by law, regulation, executive
order or government contract: the express language ofthe restriction at-issue, the employee's
position - including the type of work done, where it is done, and with whom it is done, and the
physical layout of the site.
y our letter mentioned the International Traffic in Arms Regulations (ITAR) and the
Export Administration Regulations (EAR). These regulations specifically allow access 10 all
"protected individual s" under 8 U.S.C. § 1324b(a)(3)(B). See 22 CFR § 120.15 and 15 CFR
§ 734.2(b)(2)(ii). In otherwords, nationals of the United States, lawful permanent residents,
asylees, refugees and temporary residents must be treated the same as U.S. citizens. AH such
individuals are permitted access; neither EAR nor ITAR requíres cítizenship status
díscrimination against this protected class.
In your letter, you ask whether an employer may ask prospective and existing employees
their citizenship status and/or nationalorigin for purposes of obtaining legally required export
authorizations from the Government without violating the anti-discrimination provision.
Assuming that a law, regulation, executive order or government contract restricts a specific
position in such a manner, requesting this information does not violate the INA's prohibition
against citizenshíp status discriminatíon. Again, please note that the restriction appEes solelyto
that job aI;ld not to al! hiring done by that employer. For information conceming potential
unlawful diserimination under Title VII of the Civil Rights Act of 1964, including national origin
discrimination, we recornmend that you contact the Equal Employment Opportunities
Commission (EEOC).
You also inquire about proper pre-employment inquires to the extent that a law,
regulation, exeeutive order, or government contraet restricts hiring to U.S. cítizens and lawful
permanent residents only,(or any other combinatíon ofstatuses). We do not recommend that an
employer ask an applicant or employee to identify his or her specific immigration or citizenship
status. Rather, we suggest that the employer ask the applicant or employee to. answer a single
question that determines whether he or she is within any ofthe statuses permitted access. For
example, rather than ask each applicant to identify his or her citizenship status, the employer
could ask a single question:

Page 3
Are you a U.S. citizen or national, asylee, refugee, or lawful permanent resident?
Ifthe applicant is within the appropriate class, there appears to be no reason why an
employer should know whether the applicant is a lawful permanent resident instead of a11 asylee.
Obtainíng more specífic information does not improve the employer's ability to eonduet hiring or
comply with the law, but may provide the basis for an unsuecessful job applicant to c1aim that
thc employer engaged in unlawful citizenship status discrimination.
We hope this information is helpful. Ifyou have any additionaI questions, please fcel
free t6 contact Special Poliey CounseI Bruce Friedman at (202) 616-5560.
Sincerely,
.r) 	/0-1 	'1;I$~ F	i
\/VM¿~~
Juan Carlos Benítez
SpeciaI CounseI

u.S. Department of Justice
Civil Rights Division
Special Counselfor lmmigration Re/ated
Unfair Employment Practices
P.O. Box 27728
Washington, De 20038·7728
February 29, 2000
Re: 	Permissible Citizenship Status Discrimination
under 8 U.S.C. § 1324b
Dear_
Thank you for your letter seeking guidance concerning the exceptions to the citizenship
status discrimination prohibition under the anti-discrimination provision ofthe Irnmigration and
Nationality Act (INA), 8 U.S.C. § 1324b(a)(2)(C). We apologize for our delay in responding.
As you know from the discussions my staffhas had with you, the issues presented can be quite
complexo
As you describe in your letter, the INA permits citizenship status discrimination when it
is required for compliance with law, regulation, executive order, or government contracto 8
U.S.C. § 1324b(a)(2)(C). When discrimination is not required, the INA permits citizenship.
status discrimination when the Attorney General determines that such discrimination is "essential
for an employer to do business with an agency or department ofthe Federal, State, or local
government." 	Id. It is important to recognize that these two exceptions pose different questions
and involve different analyses. 	.
With regard to the first exception, an employer must show that it is required to
discriminate on the basis of citizenship status. Thus, an employer is not justified in limiting a
position to only U.S. citizens ifthe contract does not prohibit the hiring or access of non-U.S.
citizens, but sets a heightened level ofbackground review for non-U.S. citizen employees to have
access to restricted information. In addition, a U.S. citizen requirement for specific jobs does not
justify a blanket U.S. citizens-only policy for all ofthe employer's jobs. Thus, technical staff
working on other contracts, cafeteria workers, janitorial staff, and other employees whose work
does not involve, for example, classified or restricted infonnation, are not subject to the non
citizen bar.

Your letter mentioned the International Traffic in Arms Regulations (lT AR) and the
Export Administration Regulaticins (EAR). These regulations specifically allow aceess to all
"protected individuals" under 8 U.S.C. § 1323b(a)(3)(B). Thus, nationals ofthe United States,
asylees, refugees and temporary residents in addition to U.S. citizens and lawful permanent.
residents are permitted access and citizenship status discrimination is not required in order to hire .
employees.
y ou should eonsider the following faetors when determining whether eitizenship status
discrimination is required by law, regulation, executive order or government contraet: the
express language ofthe law, regulation, etc., at issue, the employee's position - including the
type af work done, where it is done, and with whom it is done, and the physicallayout of the site.
In your letter, you ask whether an employer may provide applicants with notice that a
specifie position is restricted by citizenship status without violating the anti-diserimination
provision. Assuming that a Iaw, regulatio.n, executive order or government contraet restricts a
specifie position in such a manner, providing notice to applicants do es not violate the anti
discrimination provision. Again, please note that the restrietion applies solely to that job and not
to all hiring done by that employer.
In addition, to the extent that the law, regulation, exeeutive order, or government contraet
permits the hiring ofU.S. citizens and lawful permanent residents (or any other eombination of
statuses), we do not recommend asking an applicant to identify which acceptable status he or she
is in. Rather, we suggest asking the applicant to check yes or no to a single question asking
whether he or she is within any ofthe statuses permitted access. Ifthe applicant is within the
appro. priate cIass, there appears to be no reason why your client should know whether the 	.	. 	.
applicant is a lawful permanent resident as opposed to a U.S. citizen, for example. Obtaining this
specific information befare an individual is offered a position does not improve the employer's
ability to conduct hiring or comply with the law . .1t may make it easier for an unsuccessfuljob
applicant to claim that the employer engaged in unlawful citizenship status discrimination.
Finally, based upon the information provided, we conclude that your client cannot
lawfully discriminate on the basis of citizenship status because both lT AR and EAR pennit the
hiring ofpratected non-U.S. citizens. We would, of course, be happy to reconsider this decision .
upon review of additional relevant information that you provide, including any applicable
government contraet and details eoncerning the employrnent position at issue.
We hope this inforrnation is helpful. Ifyou have any additional questions, please feel
free to contact Special Palicy Counsel Bruce Friedman at (202) 616-5560.
Sincerely,
Ilk:v,z'c/ 	!~hn D. Trasviña
Speeial Counsel