September 6, 2013 IER Technical Assistance Letter on requesting immigration status information

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
Fax (202) 616-5509
SEP - 6 2013
Via First Class Mail and E-Mail (binshteynn@gtlaw.com)
Nataliya Binshteyn, Esq.
Greenberg Traurig, LLP
1750 Tysons Boulevard
Suite 1200
McLean, VA 22102
Dear Ms. Binshteyn,
Thank you for contacting the Office of Special Counsel for Immigration-Related Unfair
Employment Practices ("OSC"). This is in response to your email to Byron Wong, dated August
22,2013. In your email, you ask whether an August 6, 1998, OSC technical assistance letter,
pertaining to pre-employment inquiries on whether an applicant will need sponsorship for an
employment visa, "is still clU'rently in effect or if alternative and supplemental guidance has
since been issued" by OSC.
OSC enforces the anti-discrimination provision of the Immigration and Nationality Act
("INA"), as amended, 8 U.S.C. § 1324b. The anti-discrimination provision prohibits citizenship
or immigration status discrimination, national origin discrimination, unfair documentary
practices ("document abuse") during the employment eligibility verification (Form 1-9) process,
and retaliation for filing a charge or asserting rights under the anti-discrimination provision.
More information on OSC, including a number of OSC techllical assistance letters on the topic of
pre-employment inquiries, can be found on our website: www.iustice.gov/crt/about/osc.
Although OSC cannot give you an advisory opinion on any set of facts involving a particular
individual or company, we are pleased to provide some general guidelines regarding compliance
with the anti-discrimination provision of the INA, 8 U.S.C. § 1324b.
The class of workers protected from citizenship status discrimination under the INA
includes u.s. citizens, lawful permanent residents, refugees, and asylees. 8 U.S.C. §
1324b(a)(3). All work-authorized persons, including non-immigrant visa holders, are protected
from national origin discrimination and document abuse under 8 U.S.C. §§ 1324b(a)(1)(A) and
(a)(6), and from retaliation under 8 U.S.C. § 1324b(a)(5).
The guidance laid out in the August 6, 1998 technical assistance letter (attached) is still
OSC's position. In that letter, OSC cautions against asking applicants to specify their citizenship
status during the application process because a rejected applicant who is protected from
citizenship status discrimination may perceive that the employer used that information to

discriminate against him or her in making the hiring decision. Instead, OSC recommends that
employers wishing to inquire about sponsorship limit their question to that topic, without asking
specifically about immigration status. Therefore, OSC prefers the question proposed in the 1998
technical assistance letter: Will you now or in the future require sponsorship for employment
visa status (e.g. H-l B visa status)? If an employer chooses not to employ persons who require
sponsorship for an employment visa, such as an H -1 visa, the employer may state in its job
postings that it will not sponsor applicants for work visas. 	. 	.
We hope this information is of assistance to you. Please feel free to contact us through
our toll free number at 1-800-255-8155 if you have any further questions.
Sincerely,
~~-Seema Nanda
Deputy Special Counsel
Enclosure