In response to a Greenberg Traurig inquiry regarding the appropriateness of language concerning citizenship status in pre-employment scenarios, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) has issued a technical assistance letter clarifying the manner and extent to which employers may ask about prospective candidates’ potential need for employment sponsorship. Specifically, the September 6, 2013 letter confirms that the guidance set forth in the OSC’s August 6, 1998 technical assistance letter about questions related to job applicants’ citizenship status remains in effect, such that the OSC maintains its position on cautioning employers against asking applicants to provide their citizenship status during the application process “because a rejected applicant who is protected from citizenship status discrimination may perceive that the employer used that information to discriminate against him/her in making the hiring decision.” Instead, the OSC recommends that employers who wish to inquire about prospective sponsorship tailor their questions to this point and refrain from asking specifically about candidates’ immigration status. For example, an employer may ask a prospective employee “Will you now or in the future require sponsorship for employment visa status (e.g. H-1B visa status)?” In turn, an employer who elects not to employ individuals requiring sponsorship may note this posture in the company’s job postings.

It should be noted, however, that certain classes of employment may require additional inquiries into candidates’ citizenship status in order to trigger particular program benefits. For example, as frequently discussed on EB-5 Insights, our sister blog on EB-5 investment matters, immigrant investors who receive conditional permanent residency pursuant to the EB-5 program must demonstrate that their investment has created or preserved at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investors’ admission to the United States as Conditional Permanent Residents. According to the applicable regulations, a “qualified employee” is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. Importantly, this definition does not include any foreign national in a nonimmigrant status (such as an H-1B visa holder) or an individual who is not authorized to work in the United States. Thus, although EB-5 employers may not arbitrarily discriminate against prospective employees on the basis of citizenship status, they may only hire EB-5 “qualified employees” for the minimum number of jobs required to lift the conditions on investors’ permanent residency. For additional information about the dichotomy between immigration compliance and EB-5 requirements, please consult with your GT attorney.

To read the OSC’s newly issued technical assistance letter, please click here.

To read the OSC’s previous technical assistance letter on this topic, please click here.