The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, which prohibits the following employment-related conduct:
(1) Discrimination in hiring, firing or recruiting based on someone’s real or perceived national origin, citizenship or immigration status;
(2) “Document abuse” during the Form I-9 and E-Verify processes of employment eligibility verification, which includes requesting more or different documents based on an individual’s citizenship, immigration status or national origin; and
(3) Retaliation for filing a charge, assisting in an investigation or asserting rights under the anti-discrimination provision.
Thus, generally speaking, an employer may only ask a job applicant whether he or she is legally authorized to work in the U.S., or whether the applicant requires sponsorship for an employment visa, either now or in the future. Under the anti-discrimination provision of the INA, employers are not permitted to ask job applicants questions regarding nationality, country of citizenship, place of birth or U.S. immigration status in an interview or job application.
However, the anti-discrimination provision of the INA conflicts with certain employer compliance requirements under U.S. export control regulations. Specifically, to ensure compliance with U.S. export controls, employers and staffing agencies must determine the citizenship or immigration status of job applicants and new hires for positions that require access to export-controlled articles, technical data, or software. This is because U.S. export control regulations may require employers to obtain export licenses (or otherwise be authorized, under for example a license exception) before a non-U.S. person new hire begins his or her work, which includes any new hire who is not a U.S. citizen, permanent resident or protected individual such as a refugee or asylee.
By way of background, the U.S. government controls the export of sensitive equipment, software, technologies and information in order to promote the country’s foreign policy objectives and national security interests. The current U.S. export control system includes a number of laws and regulations, including the U.S. Department of Commerce’s Export Administration Regulations (EAR) and the U.S. Department of State’s International Traffic in Arms Regulations (ITAR). Under these measures, certain articles, services, technical data and software can only be shared with U.S. persons or non-U.S. persons of certain nationalities.
On March 31, 2016, the OSC issued a Technical Assistance Letter (TAL) stating that an employer may violate the anti-discrimination provision of the INA by requiring applicants and new hires to present documents and answer the following questions regarding their citizenship or immigration status, even if only to ensure compliance with U.S. export control laws and regulations, including EAR and ITAR:
(1) I am one of the following: (a) a citizen of the United States; (b) a lawful permanent resident of the United States; or (c) a person admitted into the United States as an asylee or refugee: YES or NO
(2) If you answered “NO” to Question 1, then please indicate your:
b. U.S. Immigration Status.
The abovementioned proposed employer hiring questions would be prefaced by a statement that the questions are for the sole purpose of ensuring compliance with U.S. export control laws and must only be answered if the applicant or newly hired employee wishes to be considered for such positions.
In its letter, OSC writes that an employer or staffing agency is unlikely to violate the anti-discrimination provision of the INA by asking the proposed questions regarding citizenship or immigration status to all applicants and new hires for the sole purpose of determining whether an export license is needed for certain individuals for particular positions. It would be reasonable for an employer to make a hiring decision for a position requiring an export license based on an applicant’s nationality, as U.S. employers are legally prohibited from obtaining export licenses to release sensitive information, equipment or technologies to persons of certain nationalities. For example, under ITAR, there is a prohibition on issuing licenses authorizing the disclosure of certain military or defense-related information and technical data to nationals of countries against which the U.S. maintains an arms embargo, including China, Burma, Venezuela and Vietnam, among others. Additionally, there is a prohibition on licensing many forms of export-controlled technology and technical data to certain Cuban nationals as a result of the U.S. arms and trade embargoes against Cuba. Thus, an employer who would require such a license for a particular position would need to ascertain an applicant’s nationality to determine his or her eligibility for the role.
Nevertheless, if an employer is hiring for both positions that would require export licenses for non-U.S. person hires as well as those that would not, OSC discourages asking questions regarding an individual’s citizenship or immigration status prior to offer and acceptance of employment, even if the questions are posed in a nondiscriminatory manner. This is because it may amount to citizenship status discrimination if an employer rejects a job applicant or limits the scope of a new hire’s potential assignments based on his or her responses. Moreover, such questions could lead a rejected applicant to assume this decision was based on his or her citizenship or immigration status and cause that individual to file a discrimination charge against the employer with OSC. Additionally, questions regarding immigration or citizenship status for positions that are subject to export control laws may deter refugees and asylees (who are protected from citizenship status discrimination) from applying due to confusion about eligibility for the position.
Finally, OSC writes that an employer is unlikely to violate the anti-discrimination provision of the INA by implementing a system of document verification to determine a new hire’s citizenship or immigration status solely for the purpose of complying with export control laws, as long as this process is separate and distinct from the employment eligibility verification process. However, it is important for employers to avoid any impression that such requests are made for employment eligibility verification purposes, which would violate the INA’s prohibition against document abuse and unfair documentary practices.
It is important to note that once a job applicant accepts an offer of employment, an employer should ask employees for information regarding nationality and U.S. immigration status if the individual indicates during the application process that he or she requires sponsorship. Only with this information can the employer apply for and obtain the proper nonimmigrant employment authorization for that individual. At this stage, an employer would not violate the anti-discrimination provision of the INA by asking these questions of such an employee.
The guidance provided in OSC’s TAL to resolve the tension between an employer’s compliance with the anti-discrimination provision of the INA and compliance with U.S. export control laws, including EAR and ITAR, is complicated and nuanced. It is therefore imperative for employers subject to U.S. export control laws to consult with experienced immigration attorneys prior to developing their company policies on interviewing and job applications.