November 20, 2013 IER Technical Assistance Letter on hiring requirements

u.s. Department of Justice
Civil Rights Division
Office of Special Counselfor Immigration-Related
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
November 20,2013
BY FIRST CLASS MAIL AND EMAIL (growold@ou.edu)
Gretta Rowold, Esq.
Executive Director of Secure Research Operations
Office of Legal Counsel
The University of Oklahoma
301 David L. Boren Blvd. Suite 1070
Norman, OK 73072
Dear Ms. Rowold:
This letter responds to your e-mail dated October 22, 2013, to the Office of Special Counsel for
Immigration Related Unfair Employment Practices (OSC). In your email, you stat'e that your client,
the University of Oklahoma (OU), negotiates "sponsored research agreements with non-university
parties." In this capacity, your client is periodically asked "to restrict participants to 'U.S. citizens
only. ", You state that at times, "the organization sponsoring the research is unwilling or unable to
provide justification for its U.S. citizen only hiring requirement" and often simply states that "the
organization does 'sensitive' work, or has a U.S. government customer who wouldn't like it if non
U.S. citizens were involved in the project." You ask what "exposure the University might have under
8 U.S.C. 1324 if we accept an unjustified citizenship restriction." You further ask "what type of
justification/documentation is appropriate to protect the University against any liability under 8 U.S.C.
1324."
Please note that OSC cannot provide an advisory opinion on any set of facts involving a
particular individual or entity. However, we can provide some general guidelines regarding employer
compliance with the anti-discrimination provision of the Immigration and Nationality Act (INA), 8
U.S.C. § 1324b, enforced by OSC, 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 (I-9 and E-Verify) process ("document abuse"); and retaliation for filing a
charge, assisting in an investigation or asserting rights under the anti-discrimination provision.
8 U.S.C. § 1324b.
Under the anti-discrimination provision, employers may not institute a hiring preference for
U.S. citizens unless required to do so in order to comply with a law, regulation, executive order or
government contract. 8 U.S.C. § 1324b(a)(2)(C). Individuals protected from citizenship status
discrimination under the anti-discrimination provision include U.S. citizens, recent lawful permanent

resident, refugees and asylees. 8 U.S.C. § 1324b(a)(1)(3). It is unclear whether the non-university
parties referenced in your inquiry are relying on a legal requirement to discriminate on the basis of
citizenship status in the form of a law, regulation, executive order, or government contract. In all
instances, OSC encourages an employer considering a restriction in hiring based on citizenship status
to ensure that it is properly restricting the position to a certain class of individuals in accordance with
the specific language of the relevant law, regulation, executive order, or government contract. To the
extent an employer or entity is found to have violated 8 U.S.C. § 1324b, it can be subject to, among
other sanctions, civil penalty fines, reporting requirements, and back pay. 8 U.S.C. § 1324b b(g)(B)(i
viii).
If you have further questions that pertain to the anti-discrimination provision of the INA, please
contact OSC's employer hotline, 800-255-8155; or visit OSC's website at
www.justice.gov/crt/about/osc.
We hope this information is helpful. Thank you for contacting OSC.
Alberto Ruisanchez
Acting Deputy Special Counsel