Immigration Status

The Questions

1. What questions may a company ask a job applicant to learn whether that person is work-authorized, and if so, for what period of time and in which immigration status?
2. What is citizenship discrimination, and how does it differ from national origins discrimination?
3. Who is a “protected individual” who has standing to raise a claim of citizenship discrimination?
4. If an applicant is not a protected individual, can he/she still make a claim of document abuse discrimination? And does the employer have to actually request a document, as opposed to merely asking for particular information about the applicant's immigration status?

The Answers

1. What questions may a prospective employer ask a job applicant to learn whether that person is work-authorized, and if so, for what period of time and in which immigration status?

Some employers wish to hire only those persons who are permitted to work for all employers without limitation. For example, an employer might not want to invest in training an employee, only to have that worker leave after a brief period because of immigration restrictions. Similarly, some employers don't want to have the expense and bother of sponsoring an employee for a work-authorized immigration status. And last, most employers won't want to extend an offer of employment to someone who has work authorization based on a permanent residence filing with a prior employer for a particular job, without knowing whether that job is “same or similar” to the position now being offered, as is required by law (to prevent the permanent residence application from being jeopardized).

In order for a prospective employer to learn these facts about a job applicant, the OSC has for many years advised that an employer may ask job applicants:

• Are you authorized to work for all employers in the United States? (Please note: All U.S. citizens, permanent residents, asylees and refugees are automatically so authorized).
• Do you now or will you in the future require sponsorship for continued work-authorization?

The answers to these questions are helpful to a prospective employer, but they are not sufficient for an employer to learn if and when the individual's work-authorized status will expire, how much unused time the individual has ultimately remaining on a visa status, or whether a grant of employment authorization based on a pending permanent residence application will be compromised by a move to a position that is not in the same or similar occupational classification as the one for which the permanent residence case was previously filed.

Therefore, with an important caveat discussed in the answer to Question 4 below, we believe that employers may ask prospective job applicants additional questions to discover these important facts. The additional questions that we believe are permissible are:

A. If you currently hold H-1B status: i) When did you begin your H-1B employment? and ii) Are you eligible for additional periods of H-1B or other work-authorized status, and if so, on what basis are you eligible?

B. If you have filed for adjustment of status as a permanent resident based on a labor certification approval, what were the job title and duties as set out on the labor certification application? (Note: This will permit the prospective employer to examine the prior position to see if it is a sufficiently close match to the new job. If it is not a close match, the permanent residence application will be denied.)

2. What is citizenship discrimination and how does it differ from national origins discrimination?

Citizenship discrimination refers to an employer making hiring, promotion or termination decisions about an individual on the basis of his not being a citizen of the United States. A claim of citizenship discrimination may be brought only by a “protected individual” (see below). This is distinct from national origins discrimination, which refers to employer actions made on the basis of the individual's place of origin, regardless of citizenship. A national origins discrimination claim may be brought by anyone. Since the enactment of IRCA in 1986, both forms of discrimination are in force against any entity employing more than three employees.

3. Who is a “protected individual” who has standing to file a citizenship discrimination complaint?

Only four types of individuals have standing to pursue a citizenship discrimination claim:

1. U.S. citizens (or U.S. nationals);
2. Lawful Permanent Residents ( LPRs), provided that an LPR who is eligible to apply for naturalization does so within six months of first becoming eligible. An LPR normally becomes eligible to apply after five years as an LPR (three in the case of marriage to a U.S. citizen);
3. Asylees; and
4. Refugees

Therefore, if an employer declines to hire a foreign national because that applicant is not within any of the four protected categories, the employer is insulated from a charge of citizenship discrimination. Indeed, in a June 2010 letter to an immigration lawyer who had posed this very question, the OSC stated clearly that “an employment decision made exclusively on the basis of an individual's status as a temporary visa holder or as an applicant for adjustment of status to permanent residence would not run afoul of the anti-discrimination provision.”

4. If an applicant is not a protected individual, can he/she still make a claim of document abuse discrimination? And does the employer have to actually request the document, as opposed to merely asking for particular information about the applicant's immigration status?

One would think that there should be clear and concise answers to these questions. However, there is a good deal of contradictory case law and OSC guidance, forcing employers to make risk assessments prior to posing any questions.

In U.S.A. v. Mar-Jac Poultry, Inc., a March 15, 2012 decision issued by an administrative law judge (ALJ) in the Justice Department's Executive Office for Immigration Review, Office of The Chief Administrative Hearing Officer (OCAHO), the ALJ upheld a complaint filed by the OSC charging document abuse. In that case, the company required all work-authorized applicants to produce certain documents as a pre-condition for even being given an employment application.

This troubling decision was a departure from a prior ALJ decision issued 10 years earlier (Ondina-Mendez v. Sugar Creek Packing Co.) that had limited document abuse coverage only to protected individuals (i.e., to applicants who were U.S. citizens, LPRs, asylees or refugees). The Mar-Jac decision suggested that document abuse was a separate ground of discrimination open to all workers, and was not just a subset of citizenship discrimination limited only to protected individuals. But the decision conceded that this was still an open question that could be saved for a future case. Rather, the Mar-Jac ALJ found that the employer had committed document abuse because the group of persons it had asked to produce certain documents extended “potentially to all noncitizens applicants for employment,” (including some protected individuals) and not just to those on a temporary visa status.

In an even more troubling development, in September 2013, OSC's Deputy Special Counsel appeared to dramatically broaden Mar-Jac and to extend the reach of document abuse beyond requests for documents. In a Sept. 30, 2013, letter, the OSC counsel responded to a question from an immigration lawyer about the legality of an employer asking a job applicant about the latter's H-1B maximum expiration date (which normally occurs six years after beginning that status). In her response, the OSC counsel cited the Mar-Jac decision to suggest that “an employer that inquires about the impending expiration of an individual's employment authorization document might be guilty of document abuse.”

We note that the OSC letter was written in a very confusing and unclear way, with the OSC counsel conceding that she wasn't sure if the hypothetical employer wanted to see particular documentation of H-1B status, or whether it would simply ask how much time is remaining from the total of six permissible years. The September, 2013, OSC advisory letter runs contrary to numerous prior published letters by the same office, and nowhere does the 2013 missive even note it was departing from prior determinations of this question.

Poorly Reasoned Guidance

Why do we think the Mar-Jac decision and the September, 2013, OSC guidance are poorly reasoned and impractical? For two reasons. First, if employers are prohibited from asking candidates about time remaining on their H-1B status, then hiring such individuals would be a complete gamble (as the employer would not know if it would be getting an employee who has five years or two weeks of work authorized status left) ' leading most employers to avoid hiring H-1B workers.

Second, when an employer wishes to hire a foreign national who is in H-1B status with another employer, it must file a change of H-1B employer petition with U.S. Citizenship and Immigration Services (USCIS) to enable the individual to become authorized to work for the employer. Because USCIS requires the petition to be filed with copies of prior H-1B petition approval notices and because this happens before an I-9 is completed, the employer would be placed in a Catch-22 situation of not being able to ask the individual for the documents, but needing them in order to satisfy USCIS's requirements.

Conclusion

We bring this maverick letter and decision to the attention of the employment and immigration bars for them to at the very least consider whether an aggressive OSC might pursue document abuse charges against an employer that asks job applicants about their immigration histories. We do not believe such a reckless charge would ever be sustained, but the possibility for mischief remains until this issue is settled by a subsequent clarifying OSC letter, or by decisions by an ALJ or by a higher administrative or judicial authority.

Theodore (Ted) Ruthizer and Mark D. Koestler are Partners and Co-Chairs, Business Immigration Group, at Kramer Levin Naftalis & Frankel LLP. The authors may be reached at [email protected] and [email protected], respectively.

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Almost three decades ago, in 1986, Congress enacted the Immigration Reform and Control Act of 1986 (IRCA), which for the first time in American history imposed penalties on employers for employing persons not authorized to work. In enacting employer sanctions, Congress also sought a counterbalance to overzealous employers who might discriminate against a job applicant on a mere suspicion of a lack of a work-authorized status. To accomplish that goal, Congress created a new category of anti-discrimination protection to guard against “Citizenship Discrimination” (8 U.S.C. 1324b).

Then, just four years later, in 1990, Congress created a new category of anti-discrimination protection known as “document abuse” to prohibit employers from requiring specific documents from applicants. Six years after that, in 1996, Congress amended the document abuse provision to require an intent to discriminate. To provide guidance to the employer community and to prosecute claims of citizenship discrimination, Congress established within the Department of Justice (DOJ) the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).

So, after almost 30 years of experience with this statute and with the agency charged with defining and enforcing it, one would think that the basic ground rules as to what employers may and may not do would have been clarified years ago. Unfortunately, this is not the case. Although some issues have indeed been clarified, others remain unsettled with very fuzzy guidance as to what are permissible and what are prohibited practices. In an effort to provide clarity to employers as to permissible questions that may be posed to prospective employees, we set out the most common questions that corporate clients ask us ' and provide our recommendations.

The Questions

1. What questions may a company ask a job applicant to learn whether that person is work-authorized, and if so, for what period of time and in which immigration status?
2. What is citizenship discrimination, and how does it differ from national origins discrimination?
3. Who is a “protected individual” who has standing to raise a claim of citizenship discrimination?
4. If an applicant is not a protected individual, can he/she still make a claim of document abuse discrimination? And does the employer have to actually request a document, as opposed to merely asking for particular information about the applicant's immigration status?

The Answers

1. What questions may a prospective employer ask a job applicant to learn whether that person is work-authorized, and if so, for what period of time and in which immigration status?

Some employers wish to hire only those persons who are permitted to work for all employers without limitation. For example, an employer might not want to invest in training an employee, only to have that worker leave after a brief period because of immigration restrictions. Similarly, some employers don't want to have the expense and bother of sponsoring an employee for a work-authorized immigration status. And last, most employers won't want to extend an offer of employment to someone who has work authorization based on a permanent residence filing with a prior employer for a particular job, without knowing whether that job is “same or similar” to the position now being offered, as is required by law (to prevent the permanent residence application from being jeopardized).

In order for a prospective employer to learn these facts about a job applicant, the OSC has for many years advised that an employer may ask job applicants:

• Are you authorized to work for all employers in the United States? (Please note: All U.S. citizens, permanent residents, asylees and refugees are automatically so authorized).
• Do you now or will you in the future require sponsorship for continued work-authorization?

The answers to these questions are helpful to a prospective employer, but they are not sufficient for an employer to learn if and when the individual's work-authorized status will expire, how much unused time the individual has ultimately remaining on a visa status, or whether a grant of employment authorization based on a pending permanent residence application will be compromised by a move to a position that is not in the same or similar occupational classification as the one for which the permanent residence case was previously filed.

Therefore, with an important caveat discussed in the answer to Question 4 below, we believe that employers may ask prospective job applicants additional questions to discover these important facts. The additional questions that we believe are permissible are:

A. If you currently hold H-1B status: i) When did you begin your H-1B employment? and ii) Are you eligible for additional periods of H-1B or other work-authorized status, and if so, on what basis are you eligible?

B. If you have filed for adjustment of status as a permanent resident based on a labor certification approval, what were the job title and duties as set out on the labor certification application? (Note: This will permit the prospective employer to examine the prior position to see if it is a sufficiently close match to the new job. If it is not a close match, the permanent residence application will be denied.)

2. What is citizenship discrimination and how does it differ from national origins discrimination?

Citizenship discrimination refers to an employer making hiring, promotion or termination decisions about an individual on the basis of his not being a citizen of the United States. A claim of citizenship discrimination may be brought only by a “protected individual” (see below). This is distinct from national origins discrimination, which refers to employer actions made on the basis of the individual's place of origin, regardless of citizenship. A national origins discrimination claim may be brought by anyone. Since the enactment of IRCA in 1986, both forms of discrimination are in force against any entity employing more than three employees.

3. Who is a “protected individual” who has standing to file a citizenship discrimination complaint?

Only four types of individuals have standing to pursue a citizenship discrimination claim:

1. U.S. citizens (or U.S. nationals);
2. Lawful Permanent Residents ( LPRs), provided that an LPR who is eligible to apply for naturalization does so within six months of first becoming eligible. An LPR normally becomes eligible to apply after five years as an LPR (three in the case of marriage to a U.S. citizen);
3. Asylees; and
4. Refugees

Therefore, if an employer declines to hire a foreign national because that applicant is not within any of the four protected categories, the employer is insulated from a charge of citizenship discrimination. Indeed, in a June 2010 letter to an immigration lawyer who had posed this very question, the OSC stated clearly that “an employment decision made exclusively on the basis of an individual's status as a temporary visa holder or as an applicant for adjustment of status to permanent residence would not run afoul of the anti-discrimination provision.”

4. If an applicant is not a protected individual, can he/she still make a claim of document abuse discrimination? And does the employer have to actually request the document, as opposed to merely asking for particular information about the applicant's immigration status?

One would think that there should be clear and concise answers to these questions. However, there is a good deal of contradictory case law and OSC guidance, forcing employers to make risk assessments prior to posing any questions.

In U.S.A. v. Mar-Jac Poultry, Inc., a March 15, 2012 decision issued by an administrative law judge (ALJ) in the Justice Department's Executive Office for Immigration Review, Office of The Chief Administrative Hearing Officer (OCAHO), the ALJ upheld a complaint filed by the OSC charging document abuse. In that case, the company required all work-authorized applicants to produce certain documents as a pre-condition for even being given an employment application.

This troubling decision was a departure from a prior ALJ decision issued 10 years earlier (Ondina-Mendez v. Sugar Creek Packing Co.) that had limited document abuse coverage only to protected individuals (i.e., to applicants who were U.S. citizens, LPRs, asylees or refugees). The Mar-Jac decision suggested that document abuse was a separate ground of discrimination open to all workers, and was not just a subset of citizenship discrimination limited only to protected individuals. But the decision conceded that this was still an open question that could be saved for a future case. Rather, the Mar-Jac ALJ found that the employer had committed document abuse because the group of persons it had asked to produce certain documents extended “potentially to all noncitizens applicants for employment,” (including some protected individuals) and not just to those on a temporary visa status.

In an even more troubling development, in September 2013, OSC's Deputy Special Counsel appeared to dramatically broaden Mar-Jac and to extend the reach of document abuse beyond requests for documents. In a Sept. 30, 2013, letter, the OSC counsel responded to a question from an immigration lawyer about the legality of an employer asking a job applicant about the latter's H-1B maximum expiration date (which normally occurs six years after beginning that status). In her response, the OSC counsel cited the Mar-Jac decision to suggest that “an employer that inquires about the impending expiration of an individual's employment authorization document might be guilty of document abuse.”

We note that the OSC letter was written in a very confusing and unclear way, with the OSC counsel conceding that she wasn't sure if the hypothetical employer wanted to see particular documentation of H-1B status, or whether it would simply ask how much time is remaining from the total of six permissible years. The September, 2013, OSC advisory letter runs contrary to numerous prior published letters by the same office, and nowhere does the 2013 missive even note it was departing from prior determinations of this question.

Poorly Reasoned Guidance

Why do we think the Mar-Jac decision and the September, 2013, OSC guidance are poorly reasoned and impractical? For two reasons. First, if employers are prohibited from asking candidates about time remaining on their H-1B status, then hiring such individuals would be a complete gamble (as the employer would not know if it would be getting an employee who has five years or two weeks of work authorized status left) ' leading most employers to avoid hiring H-1B workers.

Second, when an employer wishes to hire a foreign national who is in H-1B status with another employer, it must file a change of H-1B employer petition with U.S. Citizenship and Immigration Services (USCIS) to enable the individual to become authorized to work for the employer. Because USCIS requires the petition to be filed with copies of prior H-1B petition approval notices and because this happens before an I-9 is completed, the employer would be placed in a Catch-22 situation of not being able to ask the individual for the documents, but needing them in order to satisfy USCIS's requirements.

Conclusion

We bring this maverick letter and decision to the attention of the employment and immigration bars for them to at the very least consider whether an aggressive OSC might pursue document abuse charges against an employer that asks job applicants about their immigration histories. We do not believe such a reckless charge would ever be sustained, but the possibility for mischief remains until this issue is settled by a subsequent clarifying OSC letter, or by decisions by an ALJ or by a higher administrative or judicial authority.

Theodore (Ted) Ruthizer and Mark D. Koestler are Partners and Co-Chairs, Business Immigration Group, at Kramer Levin Naftalis & Frankel LLP. The authors may be reached at [email protected] and [email protected], respectively.