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I-9 E-Verify Immigration Compliance

OSC opines on Employer’s Obligation to Hire F-1 OPT

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On April 30, 2014, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a Technical Assistance letter in response to questions posed by fellow AILA member Angelo Paparelli. It found in an advisory opinion that an employer would not discriminate against an applicant due to citizenship status if it failed to hire this particular applicant, who had F-1 optional practical training (OPT) status. However, the OSC stated an employer could be susceptible to a discrimination claim based upon national origin status if that was the real reason for not hiring the applicant.

The situation involved an employment applicant on F-1 OPT status whose employment authorization would expire "three months after application for employment" and the applicant "has no ability to extend employment authorization under the F-1 OPT regulations because his or her studies are not in a STEM field and the employer is not enrolled in E-Verify; moreover, he or she is not eligible for any other available work authorization status."

Question #1: “Could a company lawfully decline to extend an offer of employment to a candidate solely based on the fact that he/she will only have work authorization for three months without engaging in citizenship status or national origin discrimination?”

Answer: OSC stated the categories of individuals protected from citizenship status discrimination are limited to U.S. citizens, lawful permanent residents (LPRs) who are not yet eligible to apply for naturalization or who have applied within six months of eligibility, asylees, and refugees. Thus, F-1 visa holders are not protected from citizenship status discrimination. Therefore, an “employer that asks whether an applicant would require sponsorship now or in the future is unlikely to implicate the anti-discrimination provision's prohibition against citizenship status discrimination.”

However, this Technical Assistance letter did cite to a 2013 Technical Assistance letter, which stated document abuse may occur when an employer rejects an employee's Form I-9 document(s) based on inquires about the impending expiration of an individual's employment authorization document, or actually rejects a document based on a future expiration date. This determination would be regardless of whether the individual is a LPR, H-1B visa holder or in other lawful status. But the issue of document abuse was not raised as a question in the 2014 request for a Technical Assistance letter.

Question #2: “If the company may lawfully decline such employment, may it communicate to the applicant this ground as the basis for their decision?”

Answer: OSC stated that “communicating to an unsuccessful applicant that the employer's unwillingness to sponsor the applicant was the basis for the non-hire decision is not likely to lead to a determination by OSC that an employer has committed unlawful citizenship status discrimination.” OSC cautioned that “companies should not make assumptions based on an individual's current employment authorization status because they may not know whether an individual is in the process of transitioning to a different immigration status that would extend or continue the individual's ability to work in the United States.”

National Origin Discrimination

Even though the company may not commit “citizenship status discrimination” in its failure to hire, there is still the issue of “national origin discrimination”. All work-authorized individuals are protected from national origin discrimination under the anti-discrimination provision. Accordingly, the OSC stated an individual who believes that he or she was not hired based on national origin, based on country of origin, accent or appearance, may allege discrimination on this basis. OSC has jurisdiction over national origin claims involving entities with between four and 14 employees, while the Equal Employment Opportunity Commission (EEOC) has jurisdiction over claims involving employers with 15 or more employees.

Conclusion

Although Technical Assistance letters do not carry the weight of law, they give valuable insight into OSC’s thinking. This is the second Technical Assistance letter issued by the OSC in 2014. I wrote about the first Technical Assistance letter of 2014 in an earlier post.

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Updated 05-09-2014 at 01:16 PM by BBuchanan

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