April 30, 2014 IER Technical Assistance Letter hiring student visa holders

U.S. Department of Justice
Civil Rights Division
Office of Special Counselfor Immigration-Related
----------_.... 	.. - -- - - -Ur!falr-Employment-[)ractices--NYA:--
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
April 30, 2014
BY EMAIL (APaparelli@seyfarth.com)
Angelo A. Paparelli
Seyfarth Shaw LLP
333 S. Hope Street
Suite 3900
Los Angeles, CA 90071
Dear Mr. Paparelli:
Thank you for contacting the Office of Special Counsel for Immigration~Related Unfair
Employment Practices (OSC). This is in response to your e~mail dated March 11,2014, in
which you request information regarding an employer's consideration of ajob applicant who is
an F~ 1 student visa holder with optional practical training (OPT). You state that the applicant's
final period of OPT employment authorization will expire "three months after application for
employment" and that the applicant "has no ability to extend employment authorization under
the F ~ 1 optical practical training regulations because his or her studies are not in a STEM field
and the employer is not enrolled in E~ Verify; moreover, he or she is not eligible for any other
available work authorization status." Specifically, you ask:
1. 	Could a company lawfully decline to extend an offer of employment to a candidate solely
based on the fact that he/she will only have work authorization for three months without
engaging in citizenship status or national origin discrimination?
2. 	If the company may lawfully decline such employment, may it communicate to the
applicant this ground as the basis for their decision?
3. 	How should this be documented internally by the company in its business records and in
its Applicant Tracking files (for OFCCP, etc. purposes)?
As you know, the Office of Special Counsel for Immigration~Related Unfair Employment
Practices (OSC) investigates and resolves charges of national origin and citizenship status
discrimination in hiring, firing or recruiting or referring for a fee; discriminatory documentary
practices in the employment eligibility verification process ("document abuse"); and retaliation
under the anti~discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. §
1324b. OSC cannot provide an advisory opinion on any specific case or set of facts. However,
we can provide general information on the INA's anti~discrimination provision and the Form I~9
process.

With respect to your first question, OSC cautions against making assumptions based on
an individual's current employment authorization status; eI!!£lo~rs ml!Y not know whether an
individual is in the process of transitioning to a different immigration status that would extend or
continue the individual's ability to work in the United States. That being said, the categories of
individuals protected from citizenship status discrimination are limited to U.S. citizens, lawful
permanent residents who are not yet eligible to apply for naturalization or who have applied
within six months of eligibility, asylees, and refugees. 8 U.S.c. § 1324b(a)(3). Accordingly, F-l
visa holders are not protected from citizenship status discrimination. Therefore, as OSC has
noted in the past, an employer that asks whether an applicant would require sponsorship now or
in the future is unlikely to implicate the anti-discrimination provision's prohibition against
citizenship status discrimination. l Similarly, communicating to an unsuccessful applicant that
the employer's unwillingness to sponsor the applicant was the basis for the non-hire decision is
not likely to lead to a determination by OSC that an employer has committed unlawful
citizenship status discrimination.
However, all work-authorized individuals are protected from national origin
discrimination under the anti-discrimination provision. Accordingly, an individual who believes
that he or she was not hired based on national origin-based on country of origin, accent or
appearance, for example-may allege discrimination on this basis. As you may know, OSC has
jurisdiction over national origin claims involving entities with between four and 14 employees,
whereas the Equal Employment Opportunity Commission (EEOC) has jurisdiction over claims
involving employers with 15 or more employees. For more information about national origin
discrimination liability for employers with 15 or more employees you may wish to contact the
EEOC at 1-800-669-4000 (TTY 1-800-669-6820) or visit the EEOC's website at www.eeoc.gov.
With respect to your inquiry about documenting information in a company's business
records and Applicant Tracking Files, there are no tracking obligations under the anti
discrimination provision. However, we recommend clearly documenting selection and hiring
decisions, including the basis for those selection and hiring decisions. Furthermore, once an
employer is notified about the initiation of an OSC investigation, it has an obligation to preserve
all relevant documentation.
We hope this information is of assistance to you. Please feel free to contact us through
our toll-free employer hotline at 1-800-255-8155 or visit our website at
www.justice.gov/cli/about/osc if you have any further questions.
Sincerely,
~UisanChezActing Deputy Special Counsel
We also refer you to a previously-issued OSC technical assistance letter addressing the potential to violate the
anti-discrimination provision if an employer requests to see a document and subsequently rejects the document
based on a future expiration date: http://www.justice.gov/crt/abollt/osc/pdflpllblications/T Aletters/FY20 13 / 174 . pdf
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