Letter from the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC)

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provision (§ 274B) of the Immigration and Nationality Act (INA). 8 U.S.C. § 1324b. Section 274B prohibits: (1) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee; (2) national origin discrimination in hiring, firing, or recruitment or referral for a fee; (3) document abuse; and (4) retaliation or discrimination. The OSC possesses jurisdiction over national origin claims involving entities with between four (4) and fourteen (14) employees. Similarly, the Equal Employment Opportunity Commission (EEOC) possesses jurisdiction over anti-discrimination claims involving entities with fifteen (15) or more employees.

On June 15, 2016, the OSC issued a letter in response to an inquiry about certain permissible questions an employer may ask of job applicants., . The letter is not an advisory opinion; however, it offers some general guidance.

The inquirer submitted the following questions for review:

  1. Do you now, or will you in the future, require sponsorship to work legally for [EMPLOYER] in the United States?
  2. If you require sponsorship, do you currently hold Optional Practical Training (OPT)?
  3. If you currently hold OPT, are you eligible for a 24-month extension of your OPT, based upon a degree from a qualifying US institution in Science, Technology, Engineering, or Mathematics (STEM), as defined by the Immigration & Customs Enforcement […]?

The OSC letter clarified that although the statute prohibits denying protected individuals employment because of their real or perceived immigration or citizenship status, employers may ask questions about whether or not a job applicant requires sponsorship or will require sponsorship in the future, so long as they ask this of all job applicants. The OSC cautions against asking questions that may deter individuals who are protected from citizenship status discrimination, such as refugees and asylees, from applying for jobs. Questions designed to prefer certain classes of nonimmigrant visa holders, such as STEM OPT students, generally will not violate the statute. F-1 visa holders are not protected from citizenship status discrimination.

Immigration attorneys specializing in corporate immigration can assist employers with compliance issues relating to anti-discrimination provisions, as well as other hiring considerations when an employer is considering hiring a foreign national.

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