September 27, 2010 IER Technical Assistance Letter on job postings

U.S. Department of Justice
Civil Rights Division
Office ofSpecial Counselfor Immigration-Related
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW .
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
SEP 2 7 2010By Email (kmoody@mdta.state.md.us)
Karen Moody, Esq.
Assistant Attorney General
Maryland Transportation Authority
2310 Broening Highway
Baltimore, Maryland 21224'
Dear Ms. Moody:
This letler responds tO your e-mail dated March 24, 2010, to the Office of Special
Counsel for Imrnigration Related Unfair Employment Practices (OSC). Please excuse our delay
in responding. You seek guidance on three questions:
1. Is it is permissible to indicate on a recruitment announcement that an
organization is unable to pay expenses associated with avisa?
2. If it is ever permissible to ask if a candidate or offeree needs a visa?
3. Are there any exceptions to the requirement to pay the expenses of a visa
should a candidate require the same?
Please note that ose cannot provide an advisory opinion on any set of facts involving a
particular individual or entity. We can provide, however, sorne general guidelines regarding the
anti-discrimination provision ofthe Immigration and Nationality Act (INA) enforced by OSC,
8 U.S.C. § 1324b, 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) process ("document abuse"); and retaliation for
filing a charge, assisting in an investigation, or asserting rights under the anti-discrimination
prOVlSlOn.
With respect to your first two questions, it is important to note that the individuals
protected for citizenship status discrimination are limited to U.S. citizens, certain lawful
permanent residents, asylees, and refugees. See 8 U.S.C. § 1324b(a)(3). Accordingly, non
immigrant visa holders, such as H-1B visa holders, are not protected fromcitizenship status
discrimination.

We have enc10sed OSC technical assistance letters (without attachments), dated July 2,
2010, May 1,2009, July 31, 2008, and Apri124, 2007. Each ofthese letters discusses the issues
you raise. As the July 2, 2010, technical assistance letter explains, if an employer chooses not to
employ persons who require sponsorship for an employment visa, such as an H-1B visa, the
emp10yer may state in its job postings that it will not sponsor applicants for work visas. For
similar reasons, as discussed in the enc10sed technical assistance letters dated May 1,2009, July
31, 2008, and April 24, 2007, an employer may ask candidates for the position whether they will
require sponsorship for a visa.
However, as noted in the enc10sed technical assistance letter dated May 1, 2009,
employers should remember that all work-authorized persons - inc1uding non-immigrant visa
holders -- are protected from national origin discrimination and document abuse under 8 US.C
§§ 1324b(a)(1)(A) and (a)(6), and from retaliation under 8 U.S.C. §1324b(a)(5).
Regarding your third question, an employer's obligations with respect to the sponsorship
and employment ofindividuals under the H visa program are enforced by the U.S. Department of
Labor (DOL). For specific guidance regarding an employer's obligations under that program,
particularly with respect to an employer's obligation to pay visa-related fees, you may contact the
Office ofForeign Labor Certification ofDOL's Employment and Training Administration. The
Office ofForeign Labor Certification has established a mailbox for questions regarding Labor
Condition Application (LCA) policies. Requests for policy guidance should be directed to
LCA.Regulation@dol.gov. 	General inquiries regarding the H-1B program should be directed to
the Office's Chicago National Processing Center at LCA.Chicago@dol.gov.
We hope you find this information helpful.
Enc10sures

U.S. Department of Jusfice
Civil Rights Division
Office oj Special Counseljor Immigralion Related
Unjaír Employment Praclices - NYA
. 950 Pennsylvania Avenue, NW
Washington, DC 20530
July 	2, 	2010	VIA MAIL AND E-MAIL (dstump@usvisagrouJl.com)
T. Douglas Stump, Esq.
Stump & Associates, P.C.
50 Penn Place, Ste. 1320.
1900 N.W. Expressway 	.
Oklahoma City, OK 73118
I 	Dear Mr~ Stump:	1_
This letter responds to your e-mail of Apri119, 2010, concerning an employer that does
not wishto sponsor employees for visas. 	The following .question appears on its employment
application: "Are you authorized to work on an unrestricted basis?'~ Y ou inquire whether an
employer may terminate an employ~e who answered the question affirmatively but is, in fact, a
student who possesses an F-l visa, on the premise that the employee made a false representation.
y ou also request "sample language that would be acceptable in job ads addressing the fact that
company will not sponsor forR-1s and thus does not want t6 hire on EADs related to OPT."
As you know, the Office of Special Counsel for Immigration-Related UnfairEmployment
Practices (OSC) investigates and resolves charges of national origin and citizenship status
di~crimination in the workplace, including over-documentation in the employmenteligibility
verification process f'document abuse"), and retaliation under the anti-discrimination provision
ofthe Immigration and Nationality Act (INA), 8 US.C. §1324b. OSC cannot provide an
advisory opinion on any specific case or set of facts. Rowever, we can provide general
information on the INA's anti-discrimination provision and the Form 1-9 process.
The categories of individuals protected froro citizenship status discrimination in
recrui1;ment, hiring and frring include US. citizens, lawful permanent residehts who are not yet
eligible to apply for naturalization or who have applied within six months of eligibility, asylees,
and refugees. 8 U.S.C. § 1324b(a)(3). Accordingly, F-l visa holders are not protected from
these forms of discrimination.

With respect to questions that may be asked on an employment application, OSC does not
recommend asking applicants to specify their citizenship status at the application stage because a
rejected applicant who is protected from citizenship status discrimination may perceive that that
the employer used that information to discriminate against him or her. 	Similarly, asking an
applicant if he or she has an "unrestricted" basis for work or temporary work authorization may
be misleading for so~e applicants who are protected for citizenship status discrimination - 	such
as asylees or refugees - 	who are' work authorized incident to status but may nonetheless possess
work authorization documents with an expiration date.
However, the following question would not raise these concerns, should an employer
choose to use it on an employment application: "Will you now or in the'future require
sponsorship for employment visa status (e.g., H-IB visa status)?" 	In addition, employers
seeking to notify prospective job applicants injob postings that they areunwilling to sponsor
nohimmigrant visas may wish to use the following language: "Applicantsmust be currently
authorized to work' in the United States on a full-timebasis."
For your'benefit, we are attaching a July 31,2008, letter respbnding to a similar inquiry..
We hope that this information is of assistance to you.' 	,
Katherine A. B 	win
Deputy Special Counsel
Enclosure

U.S. Department of Justice
Civil Rights Division
Office ofSpecial Counselfor Immigration Related
Unfair Employment Practices : NYA
950 Pennsylvania Avenue, NW
Washington, DC 70530
\
'. 	MAY 01 2009
BY EMAIL (snadel@ahlerslaw.com)
Steve Nadel, Esq.
Dear Mr. N adel:
.This is in response to your email toLindaWhite'Andrews, datedMarch31, 2009. 	In
your email, you ask fol' written confirmation from the Office of Special Counsel for Immigration .
Related Unfair Employment Practices (OSC) that your understanding ofthe 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:
1. '. It is my linderstanding it is legal for an employer to ask the following questions in an
employment application and during an interview (I am providing multiple versions ofthe
same general question -- it is my understanding that áll ofthese 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 instance, H-l B visa status?
. b. Will you now or fn the future require sponsorshipfor employment visa status
(lOr instance, H-IB visa status)?
c. Will you now or in the future require sponsorship for employment visa status,
. including but not limited to H-lB visa status?
2. 	It is my understanding an employer has no duty·to sponsor'individuals for
employment visa stattls, a.q.d that this is true with regard to applicants as well as any
current employees losing OPT status.
3. 	It is my understanding that if an applicant will need sponsorship at any time, for
example, even 27 months in the future, the employer can reject the applicant for this
reason.
4. 	It is rny understanding that if an employer discovers it has hired someone who will
need sponsorship in the future, the eÍnployer can termínate' the individual on this basis
even if the need for sponsotship will not occur uD.til sorne time in the future, for example,

when the need for sponsorship will not occur for 15 or 20 months. 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 future, and regardless of whether
the individual is an applicant or a current employee.
5. 	It is rny understanding that the same principIes apply to all types of emplo)rment
sponsorship, including H-1B and green card sp'onsorship -:- there is no duty to sponsor,
and the need for sponsorship now or in'the future is a legitimate basis for employrnent
decisions.
6. 	1t is rny understanding that because an employe:r has n~ duty to sponsor, and no duty
to hire persons who will need sponsorship in the future, an employer may draw lines in its
decision-maleing that are more favorable to such individua1s. For instance, an emp10yer
can determine that it will consider hiring persons who will need sponsorship in th~ future
if the need for sponsorship will not arise until sorne identified time in the future, for
example, at 1east 20 months from date ofhire. (In other wotds, when,the individual will
be ab1e to \Vorle for at least 20 months before employrnent eligibility is 10st, or any other
thresho1d period oftime the employer feels is sufficient to justify the training time,hiring
60sts, etc., that may be incurred). Further, ifthe employer hires such an individual, the
employer would have no duty to sponsor the individual when the time comes, and when
the ernployrnent eligibility 1S lostthe individual can then be terminatedas a result.
7. 	It is rny understanding an ernployer can establish different policies per departrnent or
even per job category. For example, if an employer were to determine that for sorne
positions it will not hire anyone who will need sponsorship now or in the future; for óther
positions the employer will hire ifthe need for sponsorship will not occur,for at least two
years (but fue employer will not sponsor When the time comes); and for other positions
the employer could agree te;> sponsor individuals.
As you may be aware, ose enforces the anti-discrimin:ation provision ofthe INA. The
anti-discrimination provision prohibits four types of employrnent-related discrimination:
citizenship or immigration status discriminati'on; national origin discrirnination; unfair
documentary practices during the employrnent eligibility verification (Form 1-9) process
C'document abuse"); and retaliation for filing a charge, assisting in an investigation, or asserting
rights under the anti-discrimination provision. Only U.S. citizens or nationals~ recent pemíanent
residents, refugees and asylees are protected from citizenship status discrimination.1
1 Only persons defmed as "protected individuals" under the INA § 274B(a)(3) are protected from
citizenship status discrimination. A "protected individual" is defmed as "a citizen ofthe United States, or . , , an
alien who is Iawfully admitted for permanent [01'] ... temporary residence, ' , . is admitted as a refugee, ... or is
granted asylum . , . but does 110t include an ... alien who fails to apply for naturalization within six months ofthe
date when the individual first becomes eligible ... to apply for naturalization .... "
2

. This office cannot give you an advisory opinion on any set of facts involving a particular
individual or company.· However, we can pro vide some general guidelines regarding compliance
with the anti-discrimination provision ofthe INA. Because temporary visa holders are not
protected from CÍtizenship status discrimination, an employment decision made exc1usively on
the basis of an individual's status as a temporary visa holder would not run afoul ofthe anti
disci:imination provision. Thus, deCÍsions not to recruit, or to hire 'or fire individuals based solely :
on their need for visa sponsorship, either currentIy or in the future, would generally not be .
actionable under the INA's anti-discrimination provision. Of course, such employment deCÍsions
must be made without the intent to discriminate against the applicant or employee based on their
national origin or to retaliate ag~nst a person for activity that is protected under the statute.
. 	Please feel free t6 contact us on our t~ll-free hotline (1-800-255-8155) or at our website
www.usdoi.gov/crt/osc, ifyou have further questions regarding immigration-relate~ employment
discrimination. We hope this information is of assistance to you. 	.
atherine A. B 	.n
DeputySpecial Counsel

V.S. Department of Justice
Civil Rights Division
Office ofSpecial Counselfor Immigration Related
Unfair Employment Practices - NYA
950PennsylvaniaAvenue, NW
Washington, DC 20530
JUl 	3 1 2008.
Ms. Patricia Gannon
Gree.nberg Traurig, LLP
MetLife Building
200 Park A venue
New York, NY 10166
Re: Reguest for Guidance on Questioning of Applicants
Dear Ms. Gannon:
Thank you for your letter dated July 2, 2008, to the Office of Special Counsel for
Irnmigration-Related Unfair Employrnent Practices ("OSC"). In your letter you request guidance
concerning the acceptability of questioning job applicants regarding their need for future
employrnent authorization. Specifical1y, you inquired as to whether employers may askjob
applicants the foUowing question:
Do yau now or at any time in the future require the filing of any application or petition
withthe u.s. Citizenship & 1mmigration Services (e.g., Form 1-765, applicationfor.
employment authorization)? 	.
. 	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 g1.lidelines regarding pre-employrnent inquiries in
light ofthe anti-~iscrimination 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 discrirnination; (3) unfair
documentary practices during the employment eligibility verificatiort (Form 1-9) process
("docurnent abuse"); and (4) retaliation for filing a charge or asserting rights under the anti
discrimination provision. 	\
OSC does not recornmend that you ask job applicants the aforernentioned question.
Instead, the question which former Special Counsel John Trasyina proposed in 1998 and which
you quote in your letter is more appropriate. Specifically, Mr. Trasvina said that ernployers may
ask:
Will you now or in the future require sponsorship for employment visa status (e.g. H-lB
visa status)?

There is a signifieant differenee between the two questions. As you know, the c1assof
workers proteeted from eitizenship status diserimination under the INA includes U.S. eitizens,·
.lawful permanent residents or eonditionalltemporary residents, refugees, and asylee.s. 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 proteeted from eitizenship status díserimination. By defmition, anyone who
requires employer sponsorship for a visa would not fall within the proteeted 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 alia, employment authorization or removal of condítioIi.
While the question, standing alone, does not violate INA'santi-discrimination provisionsper se,
there is a risk that job applicants may infer, eori'ectly or incorrectly, from the question that an
employer is seeldng to deny employment to these protected persons. A rejected applieant may
rely upon sueh ~ inquiry later to allege that the employer' s failure to hire was unlawfully
discriminatory. Moreover, asking applicants to specify whether or not they will require the filing
of anapplication for employment authorization with U.S. Citizenship & Immigration Services
IIiay be confusing to them, and may no~ elicit the CQrreet information in any evento
We hope that this information is helpfuL· Please feel freeto eall OSC through our to11
free numberat 1-800-255-8155, ifyou have further questions about tJ:ris matter. 	..
. 	Sincerely, 	..
.ú~
«~~n
. Special Counsel
2

U.S. Department of Justice
Civil Rights Division
K.B:MH:JS:WG
OjJlce ofSpecia/ Counselfor lmmigralion Related
Unfail' Employmenl Praclices - NYA
950 Pennsy/vania Avenue. NW
Washington. DC 20530
CB: 261381
Leslie K. L. Thiele
Whiteman Osterman & Hanna LLP
Attomeys at Law
One Cornmercial Plaza
Albany, NY 12260
Dear Ms. Thiele:
. 	This is in response to your inquiry dated November 22, 2006, to our Office regarding
certain questions that. your client proposes to ask job applicants regarding their work
authorization. We apologize for the delay of our response.
This Office cannot give you an advisory opinion on any particular cause of alleged
discrimination, or on any set of facts involving a particular individual or entity. However, we
can provide sorne general guidelines regarding pre-employment inquiries under the anti
discrimination provision ofthe Immigration and Nationality Act (INA), 8 U.S.C. § 1324b.
Your letter notes that your c1ient wishes to pose two questions to applicants related to
their work authorization. You ask whether it is legally permissible for an ernployrnent
application to contain the following question:
Do you have u.nrestricted United States Work Authorization?
Ifyou are a U.S. citizen, permanent resident alien, temporary resident alien, applicant for
temporary resident status, refugee, or asylee, you have Unrestricted U.S. Work Authorization. If
you are on an F, J, H, L, oi any other non-immigrant visa, you do not.
OYes, I have Unrestricted U.S. WorkAuthorization. 	.
o No, 1 do not have Unrestricted U.S. Work Authorization.
Your client'ssecond question is posed as a follow-up question to the first question. You
ask whether it is legalIy permissible to present the following listof"visa status" options to an
applicant who has answered "no" to the first question: 	.
0(1) 	I have started an application fo.r U.S, Permanent Residency with my employer, as a self

petitioner, or as the immediate relative ofa U.S. citizen.
D (2) 	1 am currentIy on an F-l visa or utilizing ~y OPT (Optional Practical Training) ..
D (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 institution or not-for-profit
employer.
D (6) 	1 am currently on a U.S. visa not mentioned above (ex: Bl, B2, or visa waiver) or 1 do not
have any U.S. work authorization at aH.
As you are probably aware, the INA prohibits citizenship status and national origin
discdmination with respect to hiring, termination, and recruiting or referring for afee .. See
8 U.S.C. § 1324b(a)(1)(Bj. The INA.also prohibits employers from engaging in "document
abuse" or over-documentation in the employment eligibility verification process .(§ 1324b(a)(6))
and retaliatory conduct (§ 1324b(a)(5»).
Citizenship status .dÍscrimination occurs when protected índividuals 1 are not hired
becimse of their real or perceived immigration or citizenship status, or because of their type of
work authorization, but the prohibition does not extend to discrimination that is otherwise
required in order to comply with law, regulation, executive order, or Federal, State, or local
government contract. 8 U.S.C. § 1324b(a)(2)(C). 	.
While non-immigrant visa holders are not protected from citizenship status
discrimination, aH work-authorized individuals, including many non-immigrant visa holders, are
protected under the INA's prohibitions against national origin discrimination and document
abuse. 8 U.S.C. §§ 1324b(a)(1)(A) and (a)(6). Thus, requests to produce a particular document
or documents in order to confirm visa status or requests for specific documents to establish
employment eligibillty, might cause an applicant to aHege document abuse. Similarly, an
applicant's perception that he or she was rejected for employment on the basis ofnational origin
may prompt the individual to allege national origin discrimination.
Consequently, it is preferable to ask employment applicants whether they are "legally
authorized to work in the U.S." As a general rule, this is all that an employer must verify under
the law. Applicants asked to specify their citizenship or immigration status in the context ofthe
employment application process may perceive that the employer considered the information in
making the hiring decision and committed prohibited discrimination.
In your letter you indicate that some nonimmigrant visa types are preferable to your
c1ient because they do not require the employer to bear significant cost and the applicant can
start work without delay. How~ver, rather than asking the applicant to choose from a list of
specific visa statuses, the employer may wish simply to state: "This employer will not sponsor
1 Under the INA, only U.S. citizens and nationals and certain documented immigrants, inc1udirig
many lawful permanent residents, asylees, and refugees, are protected froro 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 altemative, ifthe
employer is willing in certain instances to sponsor particular individuals for employment visas, '
the employer may simply ask whether the applicant will now or in the future require sponsorship
for an employment visa.
We hope that you will find this information helpful.
"	imCel',.e1", 	' ,',
:<~r,,/., "	;¡;;¡;	''''~
Katherin:~. Ba' • "in' 	,
Deputy Special Counsel