December 22, 2015 IER Technical Assistance Letter on replacing U.S. workers with contractors on temporary visas

U.S. Department of Justice
Civil Rights Division
Office of Special Counsel for Immigration-Related
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
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December 22, 2015
Sent via E-Mail (b.a.m@att.net)
Bruce A. Morrison, Chairman
Morrison Public Affairs Group
6004 Onondaga Road
Bethesda, MD 20816
Dear Mr. Morrison:
This is in response to your letter of November 2, 2015 to the Office of Special Counsel
for Immigration-Related Unfair Employment Practices (“OSC” or “Office”). In your letter, you
pose several questions regarding whether certain employer practices violate the Immigration and
Nationality Act’s (“INA’s”) prohibition against citizenship status discrimination. Specifically,
you ask whether an employer may, consistent with the anti-discrimination provision of the INA,
terminate U.S. workers and rely on contract workers with temporary work visas to perform the
work previously done by the terminated U.S. workers.
OSC cannot provide an advisory opinion on any set of facts involving a particular
individual or entity. However, we can provide some general guidelines regarding employer
compliance with the INA’s anti-discrimination provision. The anti-discrimination provision
prohibits the following types of employment-related conduct: (1) national origin, citizenship, or
immigration status discrimination in hiring, firing, or recruiting for a fee; (2) unfair documentary
practices during the employment eligibility verification (Form I-9 and E-Verify) process
(“document abuse”), which includes requesting more or different documents than required for
employment eligibility verification because of an individual’s citizenship, immigration status, or
national origin; and (3) retaliation for filing a charge, assisting in an investigation, or asserting
rights under the anti-discrimination provision. 8 U.S.C. § 1324b. For more information about
OSC, please visit our website at: http://www.justice.gov/crt/about/osc.
Your letter asks several questions about the appropriate legal framework (and prima facie
burdens) for analyzing a citizenship status discrimination claim under the anti-discrimination
provision of the INA, 8 U.S.C. § 1324b(a)(1)(B). Citizenship status discrimination occurs when
protected individuals are denied or deprived of employment because of their real or perceived
immigration or citizenship status. U.S. citizens and nationals, refugees, asylees, and recent
lawful permanent residents are protected from citizenship status discrimination under the INA.
The INA grants OSC jurisdiction over citizenship status discrimination claims involving
employers with four or more employees.

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The elements of a prima facie case of citizenship discrimination under 8 U.S.C. §
1324b(a)(1)(B) depend on whether the alleged discrimination is an individual act or a pattern or
practice of discrimination. The prima facie burdens for individual and pattern or practice cases
involving intentional discrimination are set forth in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973), and International Brotherhood of Teamsters v. United States, 431 U.S. 324
(1977), respectively.1 Further, in determining whether a violation has occurred, the Office of the
Chief Administrative Hearing Officer (“OCAHO”), the adjudicative body that hears cases arising
under the INA’s anti-discrimination provision, looks to relevant case law of the federal circuit in
which the claim arises.
Your letter also asks whether a violation of the anti-discrimination provision of the INA
can be established where an employer replaces a protected employee with a non-protected
contract employee provided by a third party company, rather than directly hiring a replacement
worker from outside of the protected class. Except in very narrow circumstances, an employer
violates the anti-discrimination provision if it terminates workers or hires their replacements
because of citizenship or immigration status. This is true regardless of whether the employer
takes the discriminatory employment actions itself through direct hiring, or contracts, as a joint
employer, with an outside agency to implement its discriminatory staffing plan. Whether an
employer has, in fact, violated the anti-discrimination provision through its use of contract
workers will depend upon the facts of each case, including (1) whether there is evidence of
intentional discrimination in the selection of employees for discharge or rehire, (2) the
circumstances surrounding the selection of the third party staffing contractor, and (3) the extent
to which the original employer could be considered a joint employer of the contract workers. In
addition, nothing prevents the filing of a charge against the contractor for potential citizenship
status discrimination, or prevents OSC from independently investigating the contractor for
potential discrimination if OSC receives information indicating a possible violation.
Your letter also seeks guidance on the issue of discriminatory intent under the anti-
discrimination provision. In contrast to several anti-discrimination laws that prohibit neutral
policies that impose a disparate impact on a protected class, the INA’s anti-discrimination
provision only prohibits intentional discrimination. This means that to engage in unlawful
citizenship status discrimination, an employer must have acted “because of” citizenship or
immigration status. 8 U.S.C. § 1324b(a)(1)(B). It is important to note that intentional
discrimination does not require animus or hostility toward the protected class member.
Determining whether a party has engaged in intentional discrimination will depend upon the
facts of each case.
Some examples of OSC’s enforcement efforts to stop unlawful employer preferences for
temporary visa holders can be found on OSC’s website. See, e.g., Settlement Agreement with
Autobuses Ejecutivos d/b/a Omnibus Express, (resolving OCAHO Case no. 13B0094), and press
release; Settlement Agreement with IBM, and press release; Settlement Agreement with
Iflowsoft LLC, and press release; Settlement Agreement with iGate/Mastech, Inc., and press
release; see also United States v. Jerry Estopy and Manuel Bortoni, d/b/a Estopy Farms, 11
1 See Sodhi v. Maricopa County Special Health Care Dist., 10 OCAHO no. 1127, 7-8 (2008) (“Because § 1324b
was expressly modeled on Title VII of the Civil Rights Act of 1964 as amended . . . case law developed under that
statute has long been held to be persuasive in interpreting § 1324b.”).

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OCAHO no. 1252 (2015); United States v. Jerry Estopy and Manuel Bortoni, d/b/a Estopy
Farms, 11 OCAHO no. 1256 (2015).
We hope that this information is helpful.
Sincerely,
Alberto Ruisanchez
Deputy Special Counsel