July 2, 2010 IER Technical Assistance Letter on termination

U.S. Department of Justice
Civil Rights Division
Office ofSpecial Counselfor Immigralion Related
Urifair Employment Praclices - NYA
950 Pennsylvania Avenue, NW
Washington, DC 20530
VIA MAIL AND E-MAIL (dstump@usvisagroup.com)
T. Douglas Stump, Esq.
Stump & Associates, P.C.
50 Penn Place, Ste. 1320
1900 N.W. Expressway
Oklahoma City, OK 73118
Dear Mr. Stump:
This letter responds to your e-mail of Aprill9, 2010, conceming an employer that does
not wish to sponsor employees for visas. 	The following question appears on its employment
application: "ATe you authorized to work on an unrestricted basis?" Y ou inquire whether an
employer may terminate an employee who answered the question affirmatively but is, in fact, a
student who possesses an F -1 visa, on the premise that the employee made a false representation.
You also request "sample language that would be acceptable injob ads addressing the fact that
company will not sponsor for H-ls and thus does not want to hire on EADs related to OPT."
As you know, the Office of Special Counsel for Immigration-Related Unfair Employment
Practices (OSC) investigates and resolves charges of national origin and citizenship status
di~crimination in the workplace, inc1uding over-documentation in the employment eligibility
verification process ("document abuse"), and retaliation under the anti-discrimination provision
ofthe Immigration and Nationality Act (!NA), 8 U.S.C. §1324b. OSC cannot provide an
advisory opinion on any specific case or set offacts. However, we can provide general
information on the !NA's anti-discrimination provision and the Form 1-9 process.
The categories of individual s protected from citizenship status discrimination in
recruitment, hiring and firing inc1ude U.S. citizens, lawful permanent residents who are not yet
eligible to apply for naturalization or who have applied within six months of eligibility, asylees,
and refugees. 8 U.S.C. § 1324b(a)(3). Accordingly, F-l visa holders are not protected from
these forms of discrimination.

With respect to questions that may be asked on an employrnent application, OSC does not
recornmend asking applicants to specify their citizenship status at the application stage because a
rejected applicant who is protected from citizenship status discrimination may perceive that that
the employer used that information to discriminate against him or her. 	Similarly, asking an
applicant if he or she has an "unrestricted" basis for work or temporary work authorization may
be misleading for sorne applicants who are protected for citizenship status discrimination - 	such
as asylees or refugees - 	who are work authorized incident to status but may nonetheless pos ses s
work authorization documents with an expiration date.
However, the following question would not raise these concerns, should an employer
choose to use it on an employrnent application: "Will you now or in the future require
sponsorship for employrnent visa status (e.g., H-1B visa status)?" 	In addition, employers
seeking to notify prospective job applicants injob postings that they are unwilling to sponsor
nonirnmigrant visas may wish to use the following language: "Applicants must be currently
authorized to work in the United States on a full-time basis."
For your benefit, we are attaching a July 31,2008, letter respbnding to a similar inquiry.
We hope that this information is of assistance to you.
wm
Deputy Special Counsel
Enclosure

U.S. Department of Justice
Civil Rights Division
Office ofSpecial Counselfor Immigration Related
Unfair Employment Practices -NYA
950 Pennsylvania Avenue, NW
Washington, DC 20530
JUl 	3 1 20080
Re: Request for Guidance on º11:estioning of Applicants
DearM~s••••
Thankyou for your letter dated July 2,2008, to the Office of Special Counsel fór
Irnmigration-Related Unfair Employment Practices ("OSC"). In your letter you request guidance
concerning the acceptability of questioningjob applicants regarding their need for future
employment autliorization, Specifically, you inquired as to whether employers may askjob
applicants the foll.owing question:
Do you now or at any time in the future require the filing of any application or petition
withthe USo Citizenship & lmmfgration Services (e;g., Form 1-765, applicationforo 	.
employment authorization)? 	. 	o
o 	Please note that the OSC may not provide advisory opinions on any particular case of
alleged discrirnination, or on any set of facts involving aparticular individual or entity.
However, OSC is able to provide sorne general guidelines regarding pre-employrnent inquiries in
light ofthe anti.-c;liscriininationprovisions ofthe Immigration and Nationality Act (!NA), 8
U.S.C. §01324b. These anti-discrlmination provisions prohibit four types of conduct: (1)
citizenship orirnmigration status discrimination; (2) national origin discrimination; (3) unfair
documentary practices during the ernployment eligibility verificatiOri (Form 1-9) process
("document abuse"); and (4) retaliation for filing a charge or asserting rights under the anti
discriminationprovision. 	''o
OSC does not recommend that you askjob applicants the aforementioned question.
Instead, the question which former Special Counsel John Trasvina proposed in 1998 and which
you quote in your letter is more appropriate. Specifically, Mr. Trasvina said that employers mayo
ask:
Will you now or in the future require sponsorship lor employment visa status (e.g. H-1B
visa status)?

There is a significant difference betweeIl the two questions. As you know, the class -of
workers protected frcim citizenship status discrimination under the INA inc1udes U.S. citizens,
.lawful permanent residents or conditionalltemporary residents, refugees, and asylees. 8 U.s.e. §
1324b(a)(3). Persons with no right to work in the United States, or persons on temporary work
visas, are not protected from citizenship status discrimination. By defmition, anyone who
requires employer sponsorship for a visa would not fall within the protected class. Thus,
.employers may malee pre-employment inquiries about applicants who require employer visa
sponsorship without violating the prohibitions against citizenship status discrimination contained
in 8 U.S.C. § 1324b.· 	.
In contrast, the question you pose implicates protected persons, who still may have to file
an"application" or "petition" for, inter alia, employment authorization or removal of condition.
While the question, standing alone, do es not violate INA'santi-discrÍInÍnation provisionsper se,
there is a risk thatjob applicants may infer, correctly or incorrectly, from the question that an
employer is seeking to deny employment to these protected persons. A rejected applicant may
rely upon such an inquiry laterto allege that the employer' s failure to hire was unlawfully
discriminatory. Moreover, asldng applicants to specify whether or not they will require the filing
of an application for employment authorization with U.S. Citizenship & Irnmigration Services
niay be confusing to them, and may noj elicit the cQrrect information in any event.
We hope that this information is helpfut' Please feel free to cal! ose through OUT to11
free number at 1-800-255-8155, ifyou have further questions about this matter. 	.
. 	Sincerely,
. Special Counse!
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