September 30, 2013 IER Technical Assistance Letter regarding pre-employment questions for job applicant on H-1B visa

U.S. Department of Justice
Civil Rights Division
Office of Special Counselfor Immigration-Related
Uri/air Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
September 30, 2013
BY EMAIL (gendelman@fosterquan.com)
Gary Endelman
Foster Quan, LLP
600 Travis Street, Suite 2000
Houston, TX 77002
Dear Mr. Endelman:
This is in response to your email dated August 29,2013. In your email you ask whether
an employer can "ask ajob applicant now working in HIB status for another company how
much time is left out of the maximum six years in their HIB status." You explain the concern
that "if someone only has a short amount of time remaining out of the maximum allowed six
years in H-IB status, [the company] would be compelled to sponsor them for lawful permanent
resident status which they might not want to do" in a particular instance, even though the
employer does generally sponsor individuals for both H-IB and lawful permanent resident status.
As you are aware, 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 anti-discrimination provision of the Immigration and Nationality
Act (INA), 8 U.S.C. § 1324b, enforced by OSC, and employer actions under that provision. 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 and E-Verify)
process ("document abuse"); and 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.
Citizenship status discrimination may occur when an employer rejects an applicant for
employment based on the applicant's citizenship or immigration status. The class of individuals
protected from this type of discrimination is limited to U.S. citizens, U.S. nationals, lawful
permanent residents, asylees and refugees. 8 U.S.C. § 1324b(a)(3)(A-B).
OSC understands your concern to be one of business necessity in that the employer you
inquire about may not be successful in preserving the H -1 B legal status of an applicant based on
(1) the limited time period remaining on the applicant's visa or (2) the imminent expiration of the
applicant's second H-IB visa. H-IB visa-holders are not covered by the INA's prohibition on
citizenship status discrimination. For this reason, employers generally do not violate the anti

discrimination provision when they do not hire individuals based on the fact that the individual
will require sponsorship, or a particular type of sponsorship. Employers that would like to know
whether an applicant would require sponsorship if1ured may ask whether the applicant would
require sponsorship now or in the future without rumling afoul of the anti-discrimination's
prohibition against citizenship status discrimination. See Letter from Seema Nanda, Deputy
Special Counsel, OSC to Nataliya Binshteyn, Attomey, Greenburg Traurig, LLP (Sept. 6,2013),
available at: http: //www.justice.gov/crt/about/osc/ pdf/publications/TAletters/FY2013/171.pdf.
Your email does not indicate whether the employer in question will request to see the
applicant's H-1B visa documentation, or whether it will ask the applicant how much time is
remaining under the applicant's H-1B visa so that it can make a detennination as to whether the
applicant will require sponsorship. Under the anti-discrimination provision, document abuse
may occur when an employer rejects an employee's Fonn 1-9 document(s) based on the
individual's national origin or citizenship status. 8 U.S.c. § 1324b(a)(6). Document abuse has
been interpreted to cover the full spectrum of hiring. See United States v. Mar-Jac Poultry, Inc.,
10 OCAHO 1148 at 10 ("our cases have long held that it is the entire selection process, not just
the hiring decision alone, which must be considered in order to ensure that there are no unlawful
barriers to oppOltunities for employment . . . Disclimination can thus occur at any point in the
hi ling process."). Therefore, an employer that inquires about the impending expiration of an
individual's employment authorization document, or actually rejects a document based on a
future expiration date, may violate the anti-discrimination provision, depending on the specific
facts of the case. Further, all work-authorized individuals, including H -1 B visa-holders, are
protected from this kind of discrimination. 	United States v. Townsend Culinary, Inc., 80CAHO
1032 (1999) (relief ordered for all victims of document abuse without distinction as to status as a
"protected individual"); United States v. Guardsmark, Inc., 3 OCAHO 572 (1993) (all work
authorized individuals are protected from document abuse).
Lastly, OSC cautions against making assumptions based on an individual's CUlTent
employment authorization document or CUlTent status; employers may not know whether an
individual is in the process oftransitioning to a different immigration status that would extend or
continue the individual's ability to work in the United States beyond the expiration date on the
employee's CUlTent employment authorization document.
We hope this infOlmation is helpful. Thank you for contacting OSC.
SeemaNanda
Deputy Special Counsel
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