March 31, 2016 IER Technical Assistance Letter on document requests and export control

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
March 31, 2016
Sent via E-Mail (ebord@morganlewis.com)
Eric S. Bord
Partner
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue, NW
Washington, DC 20004
Dear Mr. Bord:
This is in response to your letter of February 10, 2016, to the Office of Special Counsel for
Immigration-Related Unfair Employment Practices (“OSC” or “Office”). In your letter, you seek
guidance on an employer’s obligations to comply with the anti-discrimination provision of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, when verifying employees’ citizenship status
under U.S. export control laws, including the Export Administration Regulations (EAR) and the
International Traffic in Arms Regulations (ITAR). Specifically, you ask whether an employer or
contractor may require employees to present documents establishing their citizenship or immigration
status to ensure the employer’s compliance with U.S. export control regulations. You also seek this
Office’s views on whether it is permissible for employers, including staffing agencies, to ask job
applicants or newly-hired employees the following questions:
The following questions are for the sole purpose of ensuring compliance
with U.S. rules concerning the export of controlled or protected
technologies or information, including but not limited to U.S. State
Department regulations at 22 C.F.R. Subchapter M, U.S. Department of
Energy regulations found in 10 C.F.R. Part 810, the U.S. Nuclear
Regulatory Commission regulations in 10 C.F.R. Part 110, and the U.S.
Department of Commerce’s Export Administration Regulations found in
15 C.F.R. Part 730 et seq., as may be amended (collectively, “Export
Control Laws”).
If you do not wish to be considered for positions whose activities are
subject to the Export Control Laws, then you may skip the following
questions. If you do wish to be considered for positions whose activities
are subject to the Export Control Laws, then you must answer these
questions:

1. 	I am one of the following: (a) a citizen of the United States; (b) a
lawful permanent resident of the United States; or (c) a person
admitted into the United States as an asylee or refugee: YES or NO
2. 	If you answered “NO” to Question 1, then please indicate your
a. 	Citizenship:
b. 	U.S. Immigration Status:
OSC cannot provide an advisory opinion on any set of facts involving a particular individual or
entity. However, we can provide some general guidance regarding employer compliance with the anti-
discrimination provision of the INA. 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 or referral for a fee; (2) unfair documentary practices during the employment
eligibility verification (generally, the Form I-9 and E-Verify processes) (“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 implicates several parts of the anti-discrimination provision. The statute prohibits
denying protected individuals 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, and are also considered “U.S. persons”
under ITAR and EAR. As we noted in our February 25, 2013, technical assistance letter,1 ITAR “does
not, however, impose requirements on U.S. companies concerning the recruitment, selection,
employment, promotion or retention of a foreign person.”
https://www.pmddtc.state.gov/licensing/documents/WebNotice_LicensingForeign2.pdf, fn 1. Instead,
ITAR requires that employers obtain export licenses for non-U.S. person employees if their positions
require access to information governed by ITAR. Id. As a result, ITAR does not limit the categories of
work-authorized non-U.S. citizens an employer may hire.
You inquire whether an employer or staffing agency may ask the above questions of “all new
applicants in a nondiscriminatory manner prior to offer and acceptance of employment.” Assuming an
employer is hiring for at least some positions not subject to export control laws, we discourage asking
the proposed questions for positions that are not subject to export control laws to avoid generating
confusion among applicants or human resources personnel about the need for this information.2 In
addition, asking job applicants questions about their immigration or citizenship status for positions that
are subject to export control laws may deter individuals who are protected from citizenship status
discrimination, such as refugees and asylees, from applying due to a misunderstanding about their
eligibility for the position. For example, asylees and refugees responding to your proposed Question
One might have a different understanding of the term “admitted” than the meaning the term carries
under U.S. immigration laws.
1 Available at https://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY2013/163.pdf.
2 We note that even when the questions asked are carefully worded or carefully explained to applicants, certain classes of
protected individuals may nevertheless be inadvertently excluded. For instance, the questions you propose do not reference
U.S. nationals, who are protected individuals. 8 U.S.C. § 1324b(a)(3)(A).

To the extent an employer (including a staffing agency) asks the questions you propose of all job
applicants or new hires to determine only whether the employer (including a staffing agency’s client)
will need an export license for certain individuals for particular positions, it is unlikely that the employer
would violate the INA’s prohibition against citizenship status discrimination. However, if an employer
were to reject a protected individual’s application based on that individual’s answers or a staffing
agency were to limit the scope of potential assignments based upon a protected individual’s answers,
including answers provided by a U.S. national, the employer may be engaging in citizenship status
discrimination. Moreover, such questions may lead an applicant who is protected from citizenship status
discrimination, but who is not hired for other reasons, to believe that the applicant’s immigration or
citizenship status was the reason for the rejection, prompting the individual to file a charge of
discrimination with our Office.
The above questions also raise concerns under the anti-discrimination provision’s prohibition
against national origin discrimination. All work-authorized individuals are protected from national
origin discrimination under the anti-discrimination provision, and an employer that refuses to hire
individuals or, in the case of a staffing agency, limits the scope of potential assignments based on
individuals’ country of origin may run afoul of this prohibition. Your questions as posed could lead to
unlawful hiring decisions by human resources personnel who make assumptions about an applicant’s
eligibility based on his or her country of citizenship or show a preference in hiring based on national
origin. Your proposed questions could also lead rejected applicants who disclosed their country of
citizenship in response to proposed Question Two to believe that they were denied employment due to
their actual or perceived national origin and file a discrimination charge. Please note that this Office
investigates national origin discrimination claims against employers with four to 14 employees, and the
Equal Employment Opportunity Commission investigates national origin discrimination claims against
employers with 15 or more employees. For more information about the EEOC’s national origin
discrimination jurisdiction, you may visit www.eeoc.gov.
Finally, your inquiry implicates the prohibition against unfair documentary practices in the
employment eligibility verification process, 8 U.S.C. § 1324b(a)(6). As this Office explained in a
previously-issued technical assistance letter dated October 6, 2010,3 an employer that implements a
document verification process to determine only a new employee’s immigration or citizenship status to
comply with export control laws is unlikely to violate the anti-discrimination provision if the document
verification process is separate and distinct from the employment eligibility verification process.
However, we caution employers that to the extent these separate and distinct processes appear to be
integrated, such as due to proximity in time, employees and human resources personnel may have the
impression that the documentary requests are for employment eligibility verification purposes.
We hope that this information is helpful.
Sincerely,
Alberto Ruisanchez
Deputy Special Counsel
3 Available at https://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY2011/134.pdf.