February 6, 2012 IER Technical Assistance Letter on job postings

U.S. Department of Justice
Civil Rights Division
Office a/Special Counselfor Immigration-Related
Un/air Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
. Fax (202) 6/6-5509
FEB 0 6 2012
Via First Class Mail and E-Mail (eroth@gcalaw.com)
Elizabeth Roth, Esq.
GCA Law Partners LLP
1891 Landings Drive
Mountain View, CA 94043
Dear Ms. Roth:
This is in response to your November 23,2011 email seeking "acceptable language for a
jRP~.posting in which the employer can only consider US citizens because of the requirement of
the government contract under which the new employee would be working."
Please note that the Office of Special Counsel for Immigration Related Unfair
Employment Practices (OSC) cannot provide an advisory opinion on any particular instance of
alleged discrimination or on any set of facts involving a particular individual or entity. However,
we can provide some general guidelines regarding employer compliance with the anti
discriminat.ion provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, which
OSC enforces. The anti-discrimination provision prohibits hiring, firing, recruitment or referral
for a fee, and unfair documentary practices during the employment eligibility verification (Form
1-9) process (document abuse) on the basis of citizenship or immigration status or national
origin. It also prohibits retaliation for filing a charge, assisting in an investigation, or asserting
rights under the anti-discrimination provision. For more information, you may visit our website
at www.justice.gov!cli!about!osc or call our toll-free hotline at 800-255-8155.
Citizenship status discrimination occurs when individuals are not hired or are fired
because of their citizenship or immigration status. 8 U.S.C. § 1324b. However, an employer
may consider citizenship status if it is required in order to comply with a law, regulation, or
executive order, or the terms of a Federal, State, or local government contract. 8 U.S.C. §
1324b(a)(2)(C). As discussed in the attached technical assistance letters, dated January 15,2008,
alii&August 19,2010, in order for a U.S. citizen requirement to satisfy the exemption found in
the anti-discrimination provision of the INA, an employer must show that it is required to
discriminate on the basis of citizenship status for the specific position at issue. Factors that come
into play in making this determination include the express language of the contract, the
employee's position and the type of work to be performed by the employee. Thus, employers
must examine the applicable contract to determine whether it requires the employer to restrict
employment for a specific job on the basis of citizenship status.

· 	OSC recommends notifying applicants that the position is limited to U.S. citizens
ptiis'uant to a government contract. OSC suggests utilizing language such as: "Please note that
pursuant to a government contract, this specific position requires U.S. citizenship status."
We hope this information is of assistance to you.
Seema Nanda
Acting Deputy Special Counsel
Enclosures