June 29, 2010 IER Technical Assistance Letter on sponsoring employees

U.S. Department of Justice
Civil Rights Division
Offiee ofSpecial Counselfor Immigration-Related
Unfair Employmenl Practiees + NYA
950 Pellnsyfwlnia Ave, NW
Washillglon :DC 20530
Main PO]) 6/6+5594
Fax PO]) 616-5509
BY CERTIFIED MAIL AND EMAIL (apaparelli@seyfarth.com)
Angelo Paparelli, Esq.
Partner
Seyfarth Shaw LLP
620 Eighth Avenue, 32nd Floor
New York, NY 10018
Dear Mr. Paparelli,
This is in response to your email dated May 11 , 2010. In your email you asked fOE
guidance frOID the Office ofSpecial Counsel for Irnmigration-Related Unfair Employrnent
Practices ("OSC") conceming pre-hire questions that make clear that your client will not hire
applicants who require sponsorship for nonimmigrant visas as well as applicants holding an
"open rnarket Employrnent Authorization Document derived in connection with the submission
of an adjustment of status application and an employrnent-based 1-140 petition" pursuant to the
American Competitiveness in !he 21st Century Act, 8 U.s.e. § 11540).
Yon reference two questions that have been previously recommended by OSC as
appropriate questions for employers who do not wish to hire nonimmigrant visa holders:
l. 	Are you legally authorized to work in the United States? _ 	Yes _ 	No
2. 	Will you now or in the future require sponsorship for employrnent visa status
(e.g.,H-IB visastatus)? _Yes_No
You further indicate that joh applicants holding ::ln "open market Employment
Authorization Documenf' typically answer "no" to the frrst question but also ofien answer "no"
to the second question as well. Because your client would be required by U.S. Citizenship and
Irnmigration Services ("USCIS") to submit a letter confrrming that an individual with this status
is employed in the same or a similar occupational classification in order for the agency to grant
lawful permanent residency to the individual under 8 U.S.C. § 11 540), your client does not wish
to hire such individuals either.
Accordingly, you would like to know if the fo llowing question 2 suggested below would
be permitted as an altemate to OSC' s suggested question 2:
June 	29, 	2010

For purposes ofthe following question "sponsorship for an irnmigration-related
ernployrnent benefif' rneans "an H-IB visa petition, an 0-1 visa petition, an E-3
visa petition, TN status and 'job flexibility benefits' (also known as 1-140
portability or Adjustment of Status portability) for long-delayed adjustment of
status applications that have been pending for 180 days or longer." (please ask us
if you are uncertain whether you rnay need irnmigration sponsorship or desiIe
clarification.)
Will you now or in the future requiIe "sponsorship for an irnmigration-related
ernployrnent benefit?" _ 	Yes _ 	No
As you rnay know, OSC is responsible for enforcing the anti-discrimination provision of
lhe Iromigration and Nationality Act ("!NA"), 8 U.S.e. § 1324b, which prohibits national origin
discrirnination, citizenship status discrimination, unfair documentary practices (document abuse)
during the ernployment eligibility verification (Form 1-9) process, and retaliation, Only certain
"protected individuals" are protected from citizenship status discrimination. These individuals
include United States citizens, United States nationals, ternporary residents, recent lawful
pennanent residents, refugees and asylees.
1bis office cannot give you an advisory opinion on any set offacts involving a particular
individual or cornpany. However, we can provide sorne general guidelines regarding compliance
with the anti-discrimination provision ofthe INA. Because ternporary visa holders and
applicants for adjustment of status to permanent residence are not protected from citizenship
status discrimination, an employrnent decision made exclusively on the basis of an individual' s
status as a temporary visa holder or as an applicant for adjustment of status to permanent
residence would not run afonl ofthe anti-discrimination provision. Thus, decisions not to hire
individuals based solely on theiI need for visa sponsorship or their need for a written ernployer
submission to USCIS, either currently or in the future, would generally not be actionable under
the INA's anti-discrimination provision.
As you noted, an August 14, 1991, technical assistance letter issued by this office
cautions against using overly technicallalJ.guage not easily understood by a lay persono
However, because the language you propose to use clearly applies only to temporary visa
holders, it does not implicate the INA's protection against citizenship status discrimination.
Letter frOID Katherine A. Baldwin, Deputy Special Counsel, ose, to Montserrat Miller,
Attorney, Greenberg Tranrig, LLP (August 12, 2009); Letter from Kalherine A. Baldwin, Deputy
Special Counsel, OSC, to Steve Nadel, Attorney, Ahlers & Cooney, P.C. (May 1,2009); Letter
from Patrick Shen, Special Counsel, ose, to Sarika l. Garg, Attomey, Berry Appleman &
Leiden LLP (July 31;2008); Letter from Patrick Shen, Special Counsel, OSC, to Patricia
Garmon, Attorney, Greenberg Tranrig, LLP (July 31, 2008); Letter from Patrick Shen, Special
Counsel, OSC, to Gregory Siskind, Attomey, Siskind Susser Bland CMay 15,2008); and Letter
from Patrick Shen, Special Counsel, ose, to Janet V. Elizondo, Deputy Director, U.s. Equal
Employrnent Opportunity Commission DalIas District Office (January 15,2008); and Letter
from Patrick Shen, Special Counsel, ose, to Leslie K. L. Thiele, Attorney, Whiteman Osterman
& Hanna LLP (ApriI24, 2007), copies ofthe cited letters are attached. Please note, lhough, lhat
the INA does protect ternporary visa holders from national origin discrimination by small
employers with 4-14 workers, discrimination in the Form 1-9 process, and retaliation.

Please feel free to contact us on our toll-free hotline (1-800-255-8155) or visit our
website www.justice.gov/crtlosc,ifyouhavefurtherquestions regarding immigration-related
employment ~iscrimination. We hope tbis information is of assistance to you.
s~
~~a1
Deputy Special Counsel

,
•
U.S. Department of Justice
Civil Rights Division
Office of~cjal COUTlSt/jDr lmnrlgratlon &/a/td
U'I!alr Empl~nl ]>n,cticu. NYA.
9'0 PanlU)'lvanla AYemlC. NW
Wa:hlnglJm. DC 20530
August 12;2009
Montserrat Miller, Esq.
Greenberg Traurig, LLP
1750 Tysons Boulevard, Suite 1200
McLean, VA 22012
Dear Ms. Miller:
This is in response to your July 15, 2009, letter to !he Office of Special Counsel for
Immigration-Related Unfair Employment Practices (OSC), Inyour letter, you roqueS! guidance
regarding pre-employment questions for job applicants whd are temporary nonimnrigrant visa
holders, such as H- IB visa holders, and whose visas will expire in ane year Dr l ess. Specifically.
yau referenced our April24, 2007. technica1 assistance letrer, wmch suggested the following pre~
employment advisoxy: "Tbis employer will not sponsor applicants for tbe foll owing work visas: _
_ 	." You!hen asked!he following questions:
i. [W]hat if a company does in fact sponsor individuals for H-lB visas but!he
problem arises when someone has less than Qne yea¡ of lawful emploYD;lent status
remaining? ' .
2. What ifan applicantresponds YES te the qu"estion thatthey "now 'or in fue
future require sponsorship for an employment visa"? Can an eroployer follow up
that response by asking what type of visa one holds and how much time remains
on their current visa and if it is ane year aI less not hire th~ individual?
. 3. In !he alternative, is it acceptable on !he job application iD state, "lfhired, can
you provide proof th.at you are legaliy able to work in fue Unitcd Sta1e3 for at least·
12 months"? and if!he person answers NO !hen not hire !he individual?
PIease note that ose cannot provide an advisory opicion on any set offacts involving a
particular individual aI entity. Hawever, we can pIovide some general guidelines regarding fue
anti-discrimination provision of!he Immigration and Nationality Act (]NA), 8 U.S.C. § 1324b,
and employer actions under that provision.
As you may knaw. ose is responsible for enforcing fue arrti-discrimination provi~on of
!he !NA, which prohibits natioual origin discrimination, citizensbip status discrimination, unfair
documentary practices (document abuse) during the employment eligibility verification (Form I~
9) process, and retaliation. Only certain "pratected individuals" are protected from citizenship

status discrimination. Thes~ individuals include United States citizens, United States nat1onals,
temporary res.idents, recent lawfu1 permanent residents, refugees and asylees.
We will address yOU! first two questions in conjunction. An individual who requires
employer spoDSorsbip for a vi~a, such as an H-IB visa holder, is not a protec~d individual under.
8 U.S.C. § 1324b for citizenship status discrimination. Therefore, "pre - emplbyment inquines
about applicants who' require employer visa sponsorship" do not violate tb.e prohibitions agaínst
citizenship status discrimination in 8 U.S.C . § 1324b. Letter from Patri¿k Shen, Special Counsel
OSC, te Patricia Gannon, Greenberg Tramig, LLP (Jul. 31, 2008), a copy ofwbich is attached.
Tbís would inelude inquiries relating 10 the ex:piration date ofthe H-IB visa Additionaliy,
employment decisions made exclusively on the 'basis of a worker's H-IB status, oIother
temporary, nonimmigrant status, would not violate the citizenship status discrimination provision
of 8 U .S.C. § 1324b. Letter from Katherine A. Baldwin, Deputy Special Counsel, OSC, lo Steve
Nadel, Attomey, Ahlers & Cooney, P.C. (May 1, 2009), a copy ofwbich is attached.
However; please note that a1l work autborized individuals, including H-IB visa holders
are proteeted from national origin discrimination and docurnent abuse under 8 U.S.C. § 	.
1324b(a)(l)(A) and (a)(6), as well as from retaliation under 8 U.S.C. §1324b(a)(5). See Letter
from Katherine A. Baldwin, DeputySpecial Counsel, OSC, lo Leslie K-L. Tbiele, Attomey,
Whilernan Osteanan &.Hanna LLP (Apr. 24,2007) (on file with OSC). See also United States v.
Diversified Tech. & Servs. QfV •. , Inc., 9 OCABOno. 1095 (2003) (relief ordered for al! victims
of document abuse witbout distinction as to status as a "proteeted individual 11); United Btates v.
Townsend Culinary, Inc., 8 OCABO no. 1032 (1999) (same); Uniled States v. Guardsmark. Inc.,
3 OCABO no. 572 (1993) (al! work authorized individuals are prolected from documenl abuse).
Wifu respect to your third question., please be aware 'friat askingjob applicants for proof	. 	.
that fuey are legally able 10 work in th.e United States for at least twelve months may result in fue
rejection of applicants who are protected from citizenship discrimination under tb.e anti
diserimination provision of fue WA. Certain "protected individuals" whose work authorization
is incident to th.eir status, sueh as lawful permanent residents, asylees, and refugees, may
nonetheless possess an employment authorization document which expires in one year or less,
even tbough they are aufuorized to workindefinitely and are entitled to an unrestricted Social
Security eard. Thus, although fue work authorization document of such índividuals may expire
in le ss than twolve months fram the date. ofthe ir job application, fuey colltinu e to be autboIized
to work when that document expires.1 In sum, refusID.g to hire jcib applicants for failure to
J As the United States Citizenshíp and Immigration Services (USCIS) Handbook far Employers.
lnstructjops fQr CompletingFimn 1-9 CEmployment Eligibility VerificatiQp FQqn), Apr. 2009, at 12,
explains:
Future' expiratiOI! dates may appear en tbe empleyment authorizatioD documents oí
aliens, including, among otbers, permanent residents and refugees. USCIS includes
expiration dat es even on documents issued to aliens witb permanent employment
-2

provide proof of at least twelve months' employment eligibility may result in the disparate
. treatment of "protected individuals" in the hiring process on the basis of citizenship status under
8 U.S.C. § 1324b.
I hope this information is helpful. Please feel free to call OSC through our toll-free
number at 1-800-255-8155, if you have frniher questions about tIlls matter.
m
Deputy Special Counsel
Enclosures
authorization. The existence of a future expiration date:
1. Does not preclude continuous employment authorization;
2. Does not mean that subsequent employment authorization will not be
granted; and
3. Should not be considered in determining whether the alien is
qualified for a particular position.

U.S. Department of Justice
Civil Rights Division
Offir;r; of Spl:cfaf Cuunuljor Immigrolion R!laled
Unfatr Employment Practicu - NYA
950 Pe M$)lNania AlII!nu ~ , NW
Wa!hinglon, DC 70530
) MAY 011009
BY EMAlL (snactel@ahlerslaw.com)
Steve Nadel, Esq.
Dear Mr. Nadel:
·This is in response to your email to Linda White'Andrews, dated March 31, 2009. 	In
your email, you ask for written confirmation from the Office.of Special COlU1sel for Immigration '
Related Unfarr Employment Practices (OSC) that your understanding of the answers to the
questions set forth below is consistent with the anti-discrimination provision ofthe Immigration
and Nationality Act (INA). Your questions and answers are as follows:
l. 	It is my ilnderstanding it is legal for an employer to ask the followmg questions in an
employrnent application and during an interview (I aro providing multiple versions ofthe
same g~neral question - it is my understanding that áll of these versions are legal and can
be asked by an employer): 	.
a. Will you now or in the future require sponsorship for employment visa status,
for i~tance, H-IB visa statús?
.1>. Will you now or in the f.Jture require sponsorship for employment visa status
(for instance, H- 1B visa status)?
c. Will yo_u now or in the future require sponsorship for employment visa status,
-including but not limite.d to H-IB visa status?
2. 	1t is rny understanding an employer has no duty-to sponsor-inQividuals for
employment visa statQs, aqd that this is true with regard to applicants as well as any
current employees losing OPT status.
3. 	It is rny understanding that if an applicant mn need sponsorship at any time, for
example, even 27 months in the future. the employer can reject the applicant for tbis
reason.
4. 	It is my underStanding that ifan employer discovers it has hired sorneone who will
need sponsorship in the future, the employer can, term.mate the individual on this basis
even ifthe need for sponsorship will not occur until some time in the future. for example,

'1
when the need for sponsorship will not occur for 15 or 20 rnonths. In other words,
employment decisions based on a need for sponsorship are l.egal, regardless of whether
the need for sponsorship exists now or will exist in the furure, and regardless of whether
the individual is an applicant or a current employee.
5. 	1t is my understanding that the same principIes apply to aU types of emp loyment
sponsorship, including H-IB and green card sp"onsorsrup..,... fuere is no duty to sponsor,
and the need. fer sponsorship now or in·the future is a legitimate basis for employrnent
decisions.
6. 	It is my understanding that because an employe.r has no duty 10 sponsor, and no duty
10 hire persons who will need sponsorship in the future, an'employer rnay draw lines in its
decision--m.aking tbat are m'Ore favorable to such individuals. For instance, an employer 	.. ' .
can detennine that it will consider hiring persons who will need sponsorship in thy future
if tbe need for sponsorship wiil not arise until sorne identified time in tbe future, for
example, at least 20 montbs from date of hire. (In otber wotds, when. the individual will
be able to work for at least 20 months before employrnent eligibility is lost, or any other
threshold period of time the employer feels is sufficient to justify th.e training time, hiring
tosts, etc., that may be incurred). Further, ifthe employer hi,res such an individual, the
employer would have no duty to Sponsor fue individual when tbe time comes, and when
the employment eligibility is lost.the individual can then be t"erminated as a result.. 	"
7. 	1t is my understanding an employ~ can establish different policies per department or
even per job category. For example, if an employer were to determine tbat for sorne
positions it will no! hire anyone wno will need sponsorship naw or in tbe future; for 6ther
posítions tbe employer will hire ifthe need for sponsorship will not occurJor at least two
years (but fue employer will not sponsor when the time comes); and for other positions
the employer could agree tQ sponsor individuals.
As you may be aware. ose enforces the anti-discrin;lination provision of the!NA. The
anti-discrimination provision prohibits four types of employment.related discrimination:
citizenship or immigration status 'discrimination; national origin discrimination; unfair
documentary practices during the employment eligibility verification (Form 1-9}process
edocument abusen); and retaliation for filing a charge, assisting in an investigation, or asserting
rights U1J,der the anti-discrimination provision. On1y u.s. citizens or nationals; recent perníanent
residents, refugees and asylees are protected from citizenship status-discriinination. I
I Only persons defined as "protected individuals" under the INA § 274B(a)(3) are protected from
citizenship status discrimination. A "protected individual" is defined as "a citizen ofthe United States, or ... an
alien who is lawfully admitted fur pérmanent [or] ... temporary residence, ... is admitted as a refugee, ... or is
granted asylum .. '. but does no! include an ... aUcn who fails to apply for naturalization within six months ofthe
date when fue individual first becomes eligible- ... to apply for naturalization . . "
2

'Ibis office cannot give you an advisory opinión on any set oí facts involving a particular
individuhl or company. · However. we can provide some general guidelines regarding compliance
with the anti~discrimination provision ofthe INA. Because temporary visa holders are not
protected from citizenship status d¡scriminapon, an employment decision ~ exclusively on
fue basis of an individual's status as a temporary visa holder would Dot run afoul ofilie anti
discnmination provision. Thus, decisions not to recruit. or to hiTe 'or fue individuals based solely ,
on their need for visa sponsorship. eitber currently or in the future, would generally not be .
actionable under fue INA's anti-discrimination provision. Of course, such employrnent decisions
must be made without the intent to discriminate against the applicant or employee based on their
national origin or to retaliate ag~ a person for activity that ~ s. protected under the statute.
PIease feel free tO contact us on our toll-free hotline (1 -800-255-8155) OI at our website
wwW.usdoi,gov/crt/osc. ¡fyou have further questions regarding immignition-relat~ employment
discrimination. We hope this infonnation is of assistance to you. 	.
....,...amerineA. Balrl'Win
Deputy Special CO\lIlSel
.: .
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"",	. 	.~	
U.S. Depal1ment of Justice
Civil Rights Division
o
Office qf~cfal COW/Jelfor ¡mm/gration Relaled
Urifair EmploylMnt P1'Qctices - NYA.
9S0 PeMS}'IwmiaAvelllit , NW
WashlngtOl1, De 20S30
July 31, 2008
VIA E-MAIL (sgarg@usabal.com) .
Sarika 1. Garg, Esq.
Berry Appleman & Leiden LLP
7901 Jones Bran.ch Drive
Suite 320
McLean, VA 22102 	. .. "
Re: 	Document Number 290335
Dear Ms. G~g:
ThaÍllc you for yaU! electrOnic ~ to the Office of Special Counsel fOl" Immigration- 	. _.
related Unfair Employrnent.Practices (OSe). dated May 20, 2008.-, In your message, you present ",· '.
a number of seenarios associated with the requirement to verify employrnent eligibility. In sum, 1" . ': .
understand yaU! questions to be as follow:
1. How far maya business gO .in requesting 10 view documentation, such as
imrnigration documents or 1-9 forms, fróm employ~s oi a contractor (such as a
staffing agency)? May the business require fue agency supplying the workforce to
.inde~ it in case there is a violation? 	.. 	.
2. How ean: employers protect themselves from employer sanctions for illegal
hiring when dealing wj,th an independent contractor? Are employers excused
. frOID :verifying the employment a~orization ofin~ependent contractors? .Should
.the empltiyer ask the workers to SlgIl a contract statmg that they are authonzed for
. employment in the United States?
3. 1s it a violation of the anti-discrimination provisions of the hnmigration ando
Nationality Act (!NA) to askjob applicants, prior to the job offer, whetherthey .
ate legally authorized to work in the United States, and whether they will require
inunigration visa sponsors1!ip for ernployment? May job applicants be required too
sigo. an attestation to tbis effect? 	.. 	.
First, pIease be advised that the ose may not give an advisory opinion on any set of facts
involving a particular company or individual. However. 1 a.m happy to provide sorne general.
guidelines as to the anti-discrimination provisio ns ofthe!NA (ccdified in 8 U.S.C. § 1324b),
. which ose enforces. These anti-discrirnination provisions prohibit foUT types of conduct: (1)
citizenship or irnmigration status discrimination; (2) national origin discrimination; (3) unfair
documentary practices during the· employment eligibility verification (porm I- 9) process
('document ab1l:Se"); and (4) retaliation for filing a charge ar asserting rights under the anti
discrimination provision.

Letter to Sarika 1. Garg, Esq.
luly 31, 2008 	...
Pag e 2 	.
Many oí the issues rai~ in tbe :fu$! and second sets oí questions provided aboye fall 	., .
within !he purview of!he Departmenl of Homeland Security (DHS), whieh enforees !he lam
related to hiring unauthorized. workers under INA § 274A, 8 U.S.C. § 1324a. As·such, 1 strong1y ..'...: . ,
encourage you lo seek gtiidanee from DHS's U,S, Citizenship and hnmigration Seryiees (USCISl 	" :
tbrough its Offie,e ofBusiness Liaison by calling 1-800-357-2099, or by fax al (202) 272 -1 865, 	::
In addition, th~ Handbookfor Employers, Instructions for Complettng the form 1-9 (Employment
Eligibility Form),published by USCIS, contains answersto eommon questions dealing wi!h 1-9 ", :','
completi.on and employment eligibility ve¡jfi.cation. A copy of this document is available on th.e. ·
web at http://www.uscis.gov/files/nativedocuments/m-274.~df.
As a general rule, ose will not find reasonable eause to believe discrimination has
occurred simply because employers require that all employees and.eontract workers be
authorized to work; nor would ose find that demanding to see the Form. 1-9 doeumentation for ..
employees provided by a staffing agency is a per se violation ofINA § 274B.· However, in doing:
so, employeIS may not act in a discriminatory ~anneI nor tiea~ employees disparate!; because of ..
national origin or eitizenship status. Moreover, employe.l's may be liable for discri.miI1atory
behaviot tewards empioyees a staffing agency provides ifthere is a jOlnt-employer relationship . ...~ .'
It is OSC's longstanding practice to examine the tetality of evidence when determ.i.ni..tig whether .
there is reason tO "believe !hat discrimination has occurred.
In your second and third sets of q~estions , . You qUeIy whether a:n eniployer may require 	..
independent contractors or jo1;l applicants te sign a contract or otb.erwise attest that they are 	' ..
authorized to work, anq. that fuey do not require visa sponsorshlp. ose cannot provlde legal . .: .. :. 	....	: ...
8dvice on the advisability of agreements between employers and independent contractors te 	... ';:.
ensure the.employment eligibility of contraet workers. Keep in mind, ho.wever,!hat an.employer:~ :.
may not cireumv~nt its verification obligations by treating an oemployee as' an independent· .. 	.. . .. .	c(;mtractor, and e.annot impose such agreements in a: discriminatory manner. 	.., ,
Additionally, there already is a requirement for employees and employers te attest to
work authorization and verifieation thereofby eo.mpleting fue FoI1l,l I-9. By law and USe1S
poliey, the I-9 must be completed after tb.e employer makes a fumjob offer and within three dayS'
of tbe commencement of employment. Therefore. requiring a job applicant to attest to 	. , ..
employmént eli gibility prior .to receiving an offer of employment may be i.rD.permissible pre- .
screening. Because discriminatory practices frequentIy are associated with pre-screening, ose ·
will investigate an employer for a potential violation of the anti-diserimination provision ~f tbe
INA whenever there is an allegation of pre-sereening .. Additionally, pre-screening practices may .
be found lo violate!he laws !hal DHS enforees, See 8 C,F.R. §,274a.2(b) (2008).. 	" .. ' '
Finally, fue prohibition against citizenship status discrimination does Dot require tbe 	.. . :...
employer to petition for a visa on a.ri.y worker's behalf. However, to avoid the ~ppearance of 	, .. .
citizenship status discrimination, ose recommends that you ask on1y whetber th.e applicant wiU" . ." .
need visa sponsorship, not what specifie eitizenshlp status th~ applicant currentIy holds:

. '.
Lette.r 10 Sarika t. Garg. Esq.
JUIy 31, 2008
Page3
1 hope this Ínformation is of assistance to you. For further information regarding ose ,or
Ihe !NA's anti-discrimination provision, please reel free 10 cal! us al 1- 800 -255-8155.
Sincerely,
;(~~Special Counsel .' .. .. ..'
.. '.
. .
. . '
: , '.

V.S. Department of Justice
Civil Rights Division
Office ofSpecial COllnselfor Immigration Related
Unfair Employment Practices - NYA
950 Pennsylvania Avenlle, NW
Washington, DC 20530
JUl 	3 1 2008
Ms. Patricia Gannon
Gre~nberg Traurig, LLP
MetLife Building
200 Park Avenue
New York, NY 10166
Re: Request for Guidance on Ouestioning of Applicants
Dear Ms. Gannon:
Thank you for your letter dated July 2, 2008, to the Office of Special Counsel for
Immigration-Related Unfair Employment Practices ("OSC"). In your letter you request guidance
concerning the acceptability of questioning job applicants regarding their need for future
employment authorization. Specifically, you inquired as to whether employers may askjob
applicants the following question:
Do yau naw ar at any time in the future require the filing af any applicatian ar petitian
with the USO Citizenship & 1mmigratian Services (e.g., Farm 1-765, applicatianfar
emplayment autharizatian)?
Please note that the OSC may not provide advisory opinions on any particular case of
alleged discrimination, or on any set of facts involving a particular individual or entity.
However, OSC is able to provide sorne general guidelines regarding pre-employment inquiries in
light ofthe anti-discrimination provisions ofthe Immigration and Nationality Act (INA), 8
U.S.C. § 1324b. These anti-discrimination provisions prohibit four types of conduct: (1)
citizenship or immigration status discrimination; (2) national origin discrimination; (3) unfair
documentary practices during the employment eligibility verification (Form 1-9) process
("document abuse"); and (4) retaliation for filing a charge or asserting rights under the anti
discrimination provision.
OSC does not recommend that you ask job 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 may
ask:
Will yau naw ar in the future require spansarship far emplayment visa status (e.g. H-lB
visa status)?

There is a significant difference between the two questions. As you know, the c1ass of
workers protected from citizenship status discrimination under the INA includes U.S. citizens,
lawful permanent residents or conditional/temporary residents, refugees, and asylees. 8 U.S.C. §
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 definition, anyone who
requires employer sponsorship for a visa would not fa11 within the protected c1ass. Thus,
employers may make 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 aUa, employment authorization or removal of condition.
While the question, standing alone, do es not violate INA' s anti-discrirriination provisions per 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 later to a11ege that the employer' s failure to hire was unlawfully
discriminatory. Moreover, asking applicants to specify whether or not they will require the filing
of an application for employment authorization with U.S. Citizenship & Immigration Services
rriay be confusing to them, and may not elicit the correct information in any event.
We hope that this information is helpful. Please feel free to ca11 OSC through our to11
free number at 1-800-255-8155, ifyou have further questions about this matter.
Sincerely,
d~
-a.~~n
Special Counsel
2

U.S. Department of Justice
Civil Rights Division
SpeciaI Counse! forlmmigratioll Related .
Urrfair·Employment Practicu' CRT
950 PDllIIYlVOlIia Avenue, N.W. (NYA)
Wa$hillglon, De 20530
M.y 15, 2008
By Email (gsiskind@visal.w.com)
Gregorjl SisJillid, Esq.
Siskind Susser Bland
1028 Oakhaven Road
Memphis, Tennessee 38119
. Dear Mr. Siskind:
Tbis is response to your email to Katherine Ba1d~ · dated February 5. 2008. Please
excuse our delay in responding. In your emait you inquire whether ·persons who do not fall
witbin lhe definition of "protected individuals" under 8 U.S.C: §1324b(.)(3) are protected from
"document abuse" .or other forms of discrimination under the anti-discrimination provisions of
lhe Immigr.tion and N.tionality Act (!NA), 8 U.S.C.§1324b.	. 	.
While this Office cannot give yOl!- an advisoiY opinion an any particular case of alleged
discrimination, ar on any set of facts involving a particular individual OI entity. we can provi·de
information as to fue ·scope of protections afforded under the anti-discrimination·provisions of
lhelNA.
As you may know. under the anti-discrimination provision ofthe lNA, U.S. citizens, U.S.
nationals, temporary residents,recent lawful permanent residents (and tho.se wha have applied
for and completed the naturalization process within a statutorily prescribed periad), refugees and
asylees are lIprotected individuals" wiili standing to assert citizenship status discri.ntinatian
claims. In contrast, non-immigrant visa holders, such as H, L, J and F.visa holders, Temporary
Protected Status (TPS) receipients and other authorized workers, do not fall within the class of
protected individuals, and are not protected from citizenship status discrimination.
However, all work authorized individuals are protected froro national origin
discrirnination and docurnent .buse under 8 U.S.C. §§ 1324b(.)(I)(A) and (.)(6), as well as from
retali.tion under 8 U.S.C. §1324b(.)(5). SeeLetter from Kalherine A Baldwin, Deputy Special .
Counsel, dated April 24, 2007, a copy af which is attached: See also United States v. Diversifled
Technology& Services oIVA, Inc., 9 OCAHO No. 1095 (2003) (relief ordered for all victims of
document abuse without distinction as to status as a ''protected individual"); United States v.
Townsend Culinory, Inc., 8 OCAHO No. 1032 (1999) (same); Uniled Stales v. Guardsmark, 3
OCARO No. 572 (1992) (all work authorized individuals are protected froro d"ocument abuse).
But see Ondina-Mendez·v. Sugar Creek, 9 OCAllO No. 1085 (2002) (protec~on against

document abuse based on citizenship status extends only to ''protected individuals" witbin the
meaning of 8 U.S.C. § 1324b(a)(1».
We hope that the information provid.ed above is helpful. Ifyon would like further
information on the !NA's anti-discrimination provisions, please consult our website at
http://www.usdoj.gov/Cl1losc/index.html,orcallourtelephonehotline at 1-800-255-8155.
Sincerely,
~~Pamck Shen
Special Counse!
Ene!osure: OSC Teebnieal. ÁBsistant Letter, dated April24, 2007

. -- _. -_._---=-._,.._ ..
V.S. Department of Jus·t1ce
Civil Rigbts DivisiQn
KJl:MH:JS:WG
CE: 261381
. '
', ' 	" ,
Dear~._
. 	This is ro response 1;0 yourinquiiy dated N~er 22, 2006, ·to.our Office regarding
. certain. qUestiODS that.your cIient ·prOposes to askjob applicants regarding theit wark
au1hotization. .We apologize for 1he· delay of Out.reSJl?DSe. 	.
.'Í'his oifid cannot give y® an advisory opiniOD on 8ny particular causeofáneged
diacriminatipD. or.on any set of~ mvolving a particular individ~ or entity.. However, we
93.D provide somo general guideUnes reg8rding pre-em.ploym.ont inqulljes under. the anti.
,
discriminanon proVision" ofthe Immigration and Nationality Act (!NA), 8 U.S.C. § 1324b.'
. 	·Yout1etter notes that )'olir cli~t wishes to pose two ·quest;LoÍls to appli~ :related te
theirwork aufhorizatioil. You asky¡hether itis legaUypennissible foc an employment. 	.
application. to conf:ain tbe f'ollowing qu.e~o:n: . . ..
Do you have Unrestnc/ed Un1te~ Stotes W?rk Authorization? .
tfyou are a U.S. cltizep., pcnnanentresident alien, tcmporary rcsident a1i~ applicant for
tempor.uy rcsident Statos,refugee , OI asylee, yoo bave Unrestrlcted u.s. W-orkAuthorization .· lí
you are Pn an F, J, H, L, oi any otber nO~7immigrant visa. yau do not
o Yes, 1 have Unrestncted .o.S. W~rk Authorizatian.
O No, 1 d~ not have Unrestricted U.S. Work Autlwrization.
Your client's second qu estian is posed as a follow -up question to the·firsi questi.on. You
ask whether it is legally permissible to presont fue following list-of."visa status'· optiOrls to an
a:pplicant who haS answere~ ''no!' to fue fust question; 	.
D (1) 	1 have started an applicanoD fu.r U.S . PCIlll8Uent Res.idency wifu my empl.oyer, as a self

petitioner, or as fue immediate -relativ e ofa. U.S . citizen.
D (2) 	1 am current1y on an F·l visaar utilizing ~ OPT (Optional Practical train ing).
D (3) 	1 am ccrrently on a J or L ViSL 	.
Ó (4) 	1 am CUIreÍltly on a TN Visa.
D (5) 	1 aro currently on an H-IB yi;a tbroUgh Ul acadenrlc instlÚlúon or not-for-protlt
employer. 	·· 	. 	"
[J (6) 	1 am currentIy en a U.S, visanotmentioncd above (ex: Bl, B2, or visa waiver) or 1 donet
have a:ny U.S. work autborization at all. 	.
,
As you are probably aware, !he !NA prohibits citizenship status and natianal origin
disciimination with respect to biring, terminatipn,. and I:ecruiting or referring for afee. See
. 8 U.S.C. § .1324b(.)(1)(BJ. nelNAalso prohibits employon; from engaging in "document
abuse" oi: over~doC?Umentation in fue employment eligIbility verificati~ ptocess .(§ 1324b(aX6))
andretaliatOly condue! (§ 1324b(aX5)). 	.
•
Citizenship status ,discrimination <locura whcn protected índividuals1 are not hired
beq8nse oftheir real or perceivod immigration ot citizcnmi}l .status, al becausc·.oftheir type of
work authorization, but the PfOb:ibítion does not extep.d to discrinJination tD.at is otherw:ise .
req0ire9. in or4et to comply witb. IIlW, regulation, m;;ecntive order, or Fedenil, State. or local
govenunenl Co~ 8 U.S.e. § 1324b(.X2)(C). 	. 	. 	.
. Wbne uon-immigrant visa holders are llot protected from citizensbip sf?tus
disyrimina#on, all work.-autborized individuals; iDclwfuíg many nOll-imnrigrant visa holders, are
protected under the rnA's.promoitions Bgainst.national origin discriminatien and documcnt
abuse. 8 U.S.C. §§ 1324b(a)(1)(A) and (0)(6). thus, requests lo prodnce o particular dncnmien!
or documenta jn arder te confirm "Visa status ·ortequest;s fer speci:fic do cuments te establlsh
. employment eligloility, might caUse an applicmt ta allego document abuse. Similarly,"an
applicant's perception that he ar she was rejected for employment on the.basis ofnationalorigin
.. m:ty promptthe Íñdividual to allege :nittional origin discrimination.
. 	·Consequently, jt is preferable to ask employm.ent applicants whether fuey are "1ega1ly
authorized to work in fue U.S." AF. a general rule, this is aJ1 that an employer must verlfy under
the law. Ápplicants asked to specify fueir·citiienship or immigration status in the cantext ofthe
omploymcnt application proccss may perceive that the employei' consid.ered the informationin
.making the binñg decisíoD, and c6mmitted, prohibited discrimination.
In. your letter·you indicate. that sorne noniminigrant visa types are preferable te your
client because they do not require the employerte bear significant cost and the applicant can
start woIk: without de1ar . How~. mther than asking the applicant to choose frem a list of
specific visa statuses, the ernployer m.ay wish simply ta state: ''This employer will not spocsor
. 	.
1Uno.er fue !NA, on!.y U.S. citizens and nationals and certain docu"mented iJ;lllIli~ts , inoltldmg
rnany lawful permanent residents, B.S)'lees, and refu&ees, are protoctod ÍTom cl~zenship status
discrimination. 8 "t!.S.C. § .1324b(a){3).
2
!
!
I. I
..!
,
I
•
i 1
I,
!
I

I
I
,
•	. _. ... ~ ... _.. - - 	; 	,
. ,
applicants forthe fóllowUlg work .wij.S : 	.... In addition, the et;nployer m.aj,
specify fue date by which !he applicant mus! be".eligibl. lo begin work. In fue 'alternativo, iffue
employer is willing in c~ instanceS'to sp.0DS0l' particular .individuaJ.s for emplojment:visas ,
t1ie employerlllAY simply ask whether!he applicant will now or in fue futore reqllire sponsOrsbip
for áIl. employment visa. 	_ 	.
w.hopo fha! yoO will find !bis infonnalion helpfuL : ,
s_~""""
Kmherine A. B
. DopuIY,SpeciaJ Conos.l
..
..
.'

U.S. Department oC Justice
Civil Rights Division
OJFtet QfSp«I4/ CoU/lSe / jar Immigratian Re/ated
Unj,,;, Emplaymettt Pnu:tlcu • NYA
950 Pelltuylvania AW'lIue. NW
Wa.rJringIQlt . OC lOBO
JAN 15 1008
Via First C1ass Mail and Email Oanet.elizondo@eeoc.gQv)
Janet V. Elizondo
Deputy Director
U.S. Equal Employrnent Opportunity Cornmission Dallas District Office
207 S. Houston, 3rd Floor
Dalias, TX 75202
Dear Ms. Elizondo,
Thank you for youremail, dated September 24, 2007, to Jodi Dani, ofthe Civil Rights
Division. Your ernail was forwarded to this Office for response. In your email, you ¡nquire as to
the legality of a particular question on an ernployrnent application. We apologize for OUT delay
in responding.
Please be advised tbat tbis Office cannot give an advisory opinion on any particular case
of alleged discrirnination, or on any set of facts involving a particular individual or cornpany.
However, we can provide sorne general guidelines as to tbe legality ofvariou s pre-ernployrnent
inquiries and procedures under tbe anti·discrirnination provision ofthe Irnmigration and
Nationality Act (!NA). 8 U.S.C. § 1324b.
The Office ofSpecial Counsel for Immigration Related Unfair Employrnent Practices
(OSe) was established in 1986 to enforce tbe anti·discrimination provision oftbe INA. Our
mission is to protect work-authorized individuals frorn employment discrimination based on
citizensbip or immigration status, national origin, over-documentation in tbe employment
eligibility verification (Form 1-9) process (document abuse), or retaliation for filing a cbarge or
asserting tbeir rigbts under the anti·discrimination provision ofthe INA. Individuals who
believe that they bave been discriminated against in violation ofthe INA may file a charge with
OSC.
Citizenship status discrimination occurs when individuals are not hired or are fired
because oftbeir real or perceived citizenship or irrunigration status or because oftheir type of
work authorization. Under the INA. U.S. citizens, refugees, asylees. recent pennanent residents,
and temporary residents are protected from citizenship status discriminabon.
8 U.S.C. § 1324b(a)(3).

Document abuse occurs when an employer requests more or ditTerent documents than
required for employment eligibility verification, and does so with the intent to discriminate on
the basis ofnational origin or citizenship status. 8 U.S.C. § 1324b(a)(6). By law, a new
employee may choose to show either one document from an Employment Eligibility Verification
(1 -9) Form list of acceptable documents that demonstrate identity and eligibility to work (List A),
or a combination of one document from the 1-9's list of acceptable identity documents (List B)
paired with one document from a list of acceptable documents sbowing authorization to work in
Ihe United States (List C).
As described in your email, the employment application specifically asks: "Are you
prevented from lawfully becoming employed in tbis country because ofvisa or immigration
status? (Proof of citizenship will be required upon employment.)" The s13tement in parentbesis
in the second part ofthe question could imply that U.S. citizenship is required for employrnent.
However, an employer may only require U.S. citizenship in limited circumstances. The INA
pennits employcrs to discriminate on the basis of an individual ' s citizenship or irnmigration
status only if: (1) required by law, regulation, executive order; (2) required by federal , state or
local government contract; or (3) the Attomey General determines that it is essential in order for
an employer to do business with an agency or department ofthe federal, s13te or local
government. 8 U.S.C. § 1324b(a)(2)(C).
To avail itself ofthis exception, an employer must examine the applicable law,
regulation, executive order or contract to determine whether it requires the employer to restrict
employment for a specific position on the basis ofcitizenship or immigration status. A U.S.
citizcnship requirement for specific jobs does not justify a blanket U. S. citizens-only policy for
a11 jobs by that employer. For example, an employer is not justified in limiting a position to only
U.S. citizens ifa govemment contract does no1 prohibit the hiring or access ofnon-U.S. citizens,
but rather, sets a heigbtened level ofbackground review for non-U.s. citizen employees to have
access to restricted information. An employer should consider the following facts when
determining whether citizenship status discrimination is required by law, regulation, executive
order or govemment contract: the express language ofthe restriction at issue; the employee's
position - incJuding the type ofwork done, where it is done, and with whom it is done; and the
physicallayout of the site.
Moreover, a request for a specific document during the employment eligibility
verificarlon (Form 1-9) process, such as "proof of citizenship," may constitute document abuse.
lnstead, an employer should permit employees to produce whichever acceptable documents they
choose to verify their employment eligibility. Ifthe employer is trying to ascertain whetber an
individual is eligible to work in the United States without employment sponsorship, the intent
would be clearer ifthe question a5ked all applicants: "Are you currently legally authorized to
work in the United S13tes on a full-time basis?" Tbis will provide the employer with the
requisite inforination to discem whether the individual can comply with the INA's employment
eligibility verification (Form 1-9) procedure without suggesting to applicants that the employer
prefers a specific type of work autborization or immigration status. It is al50 a more precise way
of soliciting the information sought than the currerrt phraseology, which because it is phrased in
2

the negative, would allow someone who currently is not authorized to work, but potentially
could obtain employrnent sponsorship, to answer the question affirmatively.
We hope this information satisfactorily addresses your concems.
Sincerely.
rd-Patrick Shen
Special Counsel

U.S. Department of Justice
Civil Rights Division
Offr« oj's,-:faf CoIl1/UJ ftw Immlgrtllion R~(l.fM
Unfoir Empfoymenl Praclicn - NYA
950 POl1uylvo n{a AV<ttIu~. NW
Washingtan. OC 20JJO
KB:MH:JS:WG
CB: 261381
Leslie K. L. Thiele
Whiteman Osterman & Haona LLP
Attorneys at Law
One Commercial Plaza
Albany, NY 12260
Dear Ms ~ Thiele:
This is in response to your inquiry dated November 22, 2006, to our Offic~ regarding
Certain questions that .your client propases to ask job applicants regarding their wor1c:
authorization. We apologize for the delay of our response.
Tbis Office cannot give you an advisory opinion on any particular cause of alleged
discriminadon, or on any set offacts involving a particular individual or entity. However, we
can provide sorne general guidelines regarding pre-employment inquiries under the anti
discrimination provision of!he Jmmigration and NationaJity Act (!NA), 8 U.S.C. § 1324b..
Your letter notes tbat your cHent wishes to pose two questions to applicants related to
their work authorizatioh. You ask whether it is legally permissible for an employrnent
application to contaio the following question:
Do you have Unrestricted U,,¡ted States W~rk Authorizanon?
Ifyou are a U.S. citizen, pennanent resident alien, temporary resident alien, applicant for
temporary resident status, refugee, or asylee, you bav e Unrestricted U.s. Work Authorization. I(
you are on an:r, J, n, L, or any other non-immigranl visa, yuu do nut.
OYes, 1 have Unrestricted U.S. Work Authorization.
o No, 1 do not have Unrestricled U.S. Work Authorization.
Your client's second question is posed as a follow-up question to the first question. You
ask whether it is legal1y pennissible to present tbe following list of"visa status" options to an
applicant who has answere~ "no" to the frrst question:
0(1) 	1 have started an application fo.r U.S, Pennanent Residency witb my employer, as a self

•
petitioner, or as the irnmediate relative ofa U.S. citizen.
0(2) 	1 am currentIy on an F-I visa or utilizing ~y OPT (Optional Practical Training).
O (3) 	1 am currently on a J or L visa.
Ó (4) 	1 am currently on a TN visa.
D (5) 	1 am currently on an H-IB visa through an academic ínstitution or not-for-profit
employer.
0(6) 	1 am currently on a U.S. visa notmentioned aboye (ex: BI, B2, orvisa waiver) or ldo not
have any U.S. work: autborization at a11.
As you are probably aware, tbe INA prohibits citizenship status and natiaDa! origin
discrimination with respect to biring, termination. and recruiting or refemng for afee. See
8 U.S.C. § 1324b(a)(I)(Bj. The INAalso probibits employers from engaging in "document
ahuse" or over-documentatio'n in tbe employment e1igibility verification process"(§ 1324b(a)(6»
and retaliatory conduct (§ 1324b(a)(5)).
Citizensbip status discrimination occurs when protected individuals 1are Dot hired
because of tbeir real or perceived irnmigratian or citizenship status, ar because of tbeir type of
work autborization, but tbe prohibition does Dot extend to discrimination tbat is otberwise
required in order to comply witb law, regulation, executive order, or Federal, State, or local
government contract. 8 U.S.C. § 1324b(aX2)(C). 	.
While non-irnmigrant visa holders are not protected from citizenship status
discrimination, a11 work-autborized individuals, including many non-irnmigrant visa holders, are .
protected under fue INA's prohibitions against national origin discrimination and document
abuse. 8 U.s.C. §§ 1324b(a)(I)(A) and (aX6). Thus, requests to produce a particular document
or documents in arder to confum visa status OI requests for specific documents to establish
employment eligibility, might cause an applicant to al1ege document abuse. Similarly, an
applicant's perception that be or sbe was rejected for employment 00 tbe basis of natíonal erigin
may prompt tbe individual to allege national origin discrimination.
-Censequently, it is preferable lo ask employment applicants wbetber they are "legaJly
authorized to work in the U.S." As a general rule, this is all that an employer must verify under
tbe law. Applicants asked to specify their citizenship or immigration status in the context oftbe
employment application process may perceive tbat tbe employei" considered tbe information in
making the hiring decision and cornmitted prohibited discrimination.
In your Ietter you indicate that sorne nonirnrnigrant visa types are preferable to your
cUeot because they do not require the employer to bear significant cost and the applicant can
start work without delay. How~ver, rather tban asking the applicant to choose from a list of
specific visa statuses, tbe employer may wish simply to state: "Tbis employer wil1 not sponsor
I Under the !NA, only U.S. citizens and nationals and certain documented immigrants. includirig
many lawful permanent residents, asylees. and refugees, are protected from citizenship status
discrimination. 8 U.S,C. § 1324b(a)(3).
2

",
applicants for the following work visas: 	." In addition. the employer may
specify the date by which the applicant must be eligible to begin work. In the alternative. ir the
employer is willing in certam instances to sponsor particular individuals for employrnent visas,
the employer may simply ask wbetber the applicant will now or in the future require sponsorship
fo! an employrnent visa.
We hope that you will find this informntion helpful.
In
Deputy Special Counsel