Warning to Employers: Don’t Ask About Citizenship Status During Application Process
In a technical assistance letter (“TAL”) from September 6, 2013, the Office of Special Counsel (“OSC”) reaffirmed its warning against asking job applicants to specify their citizenship status during the application process. The OSC noted that rejected applicants may believe that the employer used such information to discriminate against them in making a hiring decision. The agency recommends that employers seeking to inquire about sponsorship should limit any questions to that topic and not ask specifically about immigration status. The OSC prefers employers use the question: “Will you now or in the future require sponsorship for employment visa status (e.g. H-1B visa status)?”
The OSC further explained in a TAL dated September 30, 2013, that only U.S. citizens, certain lawful permanent residents, asylees and refugees are protected from citizenship status discrimination. Thus, an individual who holds or is seeking sponsorship for an H-1B visa is not a member of a protected class and unable to establish a prima facie case of citizenship discrimination. A company may, therefore, choose not to employ a person who requires visa sponsorship. An employer who elects not to employ persons requiring sponsorship for an employment visa may also include in job postings that it will not sponsor applicants for work visas.
However, in a different TAL also issued on September 30, 2013, the OSC stated that if an employer asks an applicant about an upcoming expiration of their employment authorization document or rejects a document due to a future expiration date, the employer may violate anti-discrimination provisions, depending upon the specific facts of the situation. All individuals authorized to work, including H-1B visa holders, are protected from this type of discrimination. United States v. Townsend Culinary, Inc., 8 OCAHO 1032 (1999) (relief ordered for all victims of document abuse without distinction as to status as a “protected individual”); United States v. Guardsmark, Inc., 3 OCAHO 572 (1993) (all work authorized individuals are protected from document abuse). The OSC also cautioned employers against making assumptions about future status based on an individual’s current status because an individual may be in the process of transitioning to a different status extending or continuing an individual’s work authorization.