August 21, 2012 IER Technical Assistance Letter on requesting job seekers' visa information

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U.S. Department of Justice
Civil Rights Division
Office of Special Counselfor Immigration-Related
Ulifair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
August 21,2012
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Via Email (jsun@experience.com)
Janet Sun
VP, Marketing
Experience, Inc.
www.experience.com
Dear Ms. Sun:
Thank you for contacting the Office of Special Counsel for Immigration-Related Unfair
Employment Practices ("OSC"). This is in response to your email dated July 19,2012. In your
email, you explain that your company provides software to career centers. You ask whether your
company can ask jobseekers to provide their visa status, make the information available to the
jobseeker's school, and "take the jobseeker-provided visa information and translate it so that
employers can only see whether ajobseeker is 'authorized to work in the US' or not." You do
not indicate why your company makes this information available to the schools in which the
jobseeker attends or what use the school makes of this information.
OSC is responsible for enforcing the anti-discrimination provision of the Immigration and
Nationality Act ("INA"), 8 U.S.C. § 1324b, which prohibits national origin discrimination,
citizenship status discrimination in hiring and firing, unfair documentary practices ("document
abuse") during the employment eligibility verification (Form 1-9) process, and retaliation.
More information on OSC can be found on our website: www.justice.gov/crt/about/osc. OSC
caml0t provide an advisory opinion on any set of facts involving a particular individual or entity.
However, we can provide some general guidelines regarding the anti-discrimination provision of
the INA, 8 U.S.C. § 1324b.
OSC cautions against asking applicants to specify their citizenship or immigration status at the
application stage, even if the information is then converted to a general description of whether
an employee is work-authorized or not. A process that asks applicants to identify their
citizenship status may be facially discriminatory in that it creates an unnecessary barrier to
potential noncitizen applicants. See Eze v. West County Transportation Agency, 10 OCAHO
No. 1140, at 3 (2011). Applicants asked to specify their citizenship or immigration status
during the employment application process may perceive that an employer considered that
information in making its hiring decision in a manner that violates the INA's anti
discrimination provision. Specifically, refusing to hire a work-authorized individual based on
their citizenship or immigration status may constitute a violation ofthe INA's anti
discrimination provision. In addition, an applicant's immigration status may change over

time, resulting in a mischaracterization of current status to the school. Because such software
appears to make a determination about status in advance of an applicant's acceptance of a job
offer-possibly far in advance-it does not account for potential changes in status that may
occur prior to offer and acceptance and prior to the completion of a Form 1-9. Furthermore,
caution should be exercised that the software program does not inaccurately determine the
applicant's eligibility to work in the United States, particularly for individuals with less
common immigration statuses andlor new categories of legal immigration status.
- -- ----- - We hope this fnforniatiori is helpIur If you have further questions,-preas-e-c~ilraSe's--
employer hotline at 1-800-255-8155 or visit OSC's website.
Sincerely,
L~SeemaNanda
Deputy Special Counsel
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