July 26, 2011 IER Technical Assistance Letter on termination

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
Fa;" (202) 616-5509
July 26,2011
Fazila Vaid
Attorney at Law
Masuda, Funai, Eifert & Mitchell, LTD
1475 E. Woodfield Rd., Suite 800
Schaumburg, IL 60173
Dear Fazila Vaid:
This is in response to your email dated June 22, 2011. In your email, you inquired
whether a company can legally terminate a new hire that is an applicant for, but has not yet been
granted, permanent residence on the grounds that he or she lied on the application when he or· she
responded respectively "Yes" and "No" to the following two questions: 	.
1. 	Are you currently a U.S. citizen or national, an alien lawfully admitted for
permanent residence, a refugee, an tndividual granted asylum, or admitted for
residence as an applicant under the 1986 immigration amnesty law? This does
not include people admitted exclusively on nonimmigrant visas, such as B, H, 0,
E, TN, L or individuals on F-1 visas completing CPT (Curricular Practical
Training) or OPT (Optional Practical Training). Yes or No
2. 	Will you now, or in the future, require sponsorship for U.S. employment visa
status? (e.g., H-lB or permanent Residency status) Yes or No
. In your email, you state that the company has a policy of not sponsoring individuals for
employment as well as a policy that provides for termination of an employee for falsifications or
misrepresentations on ajob application. You further state that a dishonest response to Question
2 above becomes apparent after acceptance of an offer of employment, when "the new hire
presents short-term work authorization (i.e. a work permit, aile/a EAD) for 1-9 completion
because his or her green card application has not yet been approved. " You also inquire whether
an employer could ask the following questions in lieu of the two questions posed above:
1. Are you currently a U.S. citizen or national, an alien lawfully admitted for
permanent residence, a refugee, an individual granted asylum, or admitted for
residence as an applicant under the 1986 imm~gration amnesty law? Yes 	No
Please answer this question based on your current status only. Do not answer
based on a status for which you've applied but have not yet established. Note: .
individuals admitted exclusively on nonimmigrant visas, such as B, H, O,E, TN, L

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or individuals on F -1 visas completing CPT (Curricular Practical Training) or
OPT (Optional Practical Training) are not included in the classifications listed
above and should, therefore, answer "No" to this question.
2. Are you an individual currently admitted exclusively on a nonimmigrant visa,
such as B, H, 0, E, TN, or F-l? 	Yes 	No
3. 	If you indicated that you would require sponsorship (either now or in the 'future),
please list the prior nonimmigrant visa status that you have held in the U.S. (e.g.
H-IB, F-l, J-l, TN) and the dates you held such status.
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 infonnation on OSC, please visit our website
at: http://www.justice.gov/crtlabout/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 provisions of the INA,
8 U.S.C. § 1324b.
Employers may enforce a policy requiring truthfulness on the job application for all of its
employees, as long as the employer applies the policy consistently to all employees without
regard to citizenship status or national origin. But an individual with an independent grant of
work authorization, such as an EAD granted while an application for permanent residence is
pending, would not necessarily require employer-based visa sponsorship. Moreover, employers
may violate the anti-disclimination provision of the INA by refusing to hire or by firing an
individual based on the fact that the employment authorization the individual presented for the
Form 1-9 has a future expiration date. See In re charge of Haroldo Batres v. The Beverly Center,
5 OCAHO 762 (1995). To do so, could constitute document abuse in violation of the anti
discrimination provision of the INA. 	.
Regarding your proposed rewritten Questions 1 and 2, under the anti-discrimination
provision of the INA, employers cannot reject certain job applicants based on citizenship or
immigration status. 8 U.S.C. §1324b(a)(1). Those protected from citizenship status
discrimination include U.S. citizens, certain lawful permanent residents, asylees, and refugees.
8 U.S.C. § l324b(a)(3). Although nonimmigrant visa holders are not protected from citizenship
status discrimination, as indicated in previous technical assistance letters (please find the
enclosed July 2010, July 2008, and Apri12007letters addressing this topic), OSC does not
recommend asking any applicants to specify their citizenship or immigration status at the
application stage. Applicants asked to specify their citizenship or immigration status in the
context of the employment application process-including those protected from citizenship
status discrimination-may perceive that the employer considered that information in making its
hiring decision. Furthermore, applicants who are confused about the chaJacterization of their

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immigration status, but who nevertheless possess documents evidencing current work
authorization, may inadvertently mischaracterize their status on the job application, resulting in
disqualification.
Regarding your proposed Question 3, in previous technical assistance letters our office
has recommended that employers with non-sponsorship policies simply ask an applicant, "Will
you now, or in the future, require sponsorship for U.S. employment visa status (e.g. HI-B visa
status)?" This question is directed at individuals who are non-immigrant visa holders, including
those on CPT/OPT, and does not necessarily inquire about individuals with EADs that will not
require employer sponsorship (please see the enclosed July 2010 and July 2008 letters addressing
this topic).
We hope you find this information helpful.
SeemaNanda
Acting Deputy Speciai Counsel
Enclosures