Justice Department Remarks on Potential Discrimination Claims Arising from the Non-Hire of Work-Authorized Foreign Nationals

In a recent Technical Assistance Letter, the U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) comments on whether (1) an employer may, without engaging in citizenship status or national origin discrimination, decline to hire an F-1 student visa holder with optional practical training (OPT) based solely on the fact that he or she has a limited  period of employment authorization remaining; (2) if so, whether an employer may communicate to the applicant this ground as the basis for its decision; and (3) how the employer should document these actions in its internal business records and applicant tracking files.

OSC cautions employers against “making assumptions based on an individual’s current employment authorization status.” An employer might lack knowledge of the fact that the applicant is in the process of changing to a different immigration status that would extend the individual’s ability to work in the United States. That said, under the anti-discrimination provision, F-1 visa holders are not protected from citizenship status discrimination as they do not fall within the categories of protected individuals, namely U.S. citizens, certain lawful permanent residents, asylees, and refugees. As a result, employers may, without implicating the anti-discrimination provision’s prohibition against citizenship status discrimination, ask an F-1 student applicant whether he or she would require sponsorship now or in the future and also communicate to an unsuccessful applicant that the basis for the decision not to hire was the employer’s unwillingness to sponsor the applicant. On the other hand, all work-authorized individuals are protected against national origin discrimination. Consequently, an individual who believes that he or she was not hired on the basis of national origin (e.g., country of origin, accent, or appearance) may allege discrimination on national origin grounds.

OSC also notes that there are no tracking obligations under the anti­-discrimination provision, but that employers should clearly document selection and hiring decisions, including the basis for those decisions. In addition, once notified of the initiation of an OSC investigation, employers are obliged to preserve all relevant documentation.