The Right Immigration Question is at Last Approved by the OSC

Editor’s Note: today’s blog is courtesy of Angelo Paparelli of Seyfarth Shaw LLP]. Every once in a while a government agency in the immigration space does the right thing. If I’m to maintain credibility and objectivity in the eyes of readers, I need to call out functional behavior when I see it — notwithstanding that this blog (www.nationofimmigrators.com) is dedicated to dysfunctions in the immigration ecosystem. The agency worthy of plaudits is a unit within the Civil Rights Division of the Department of Justice known as the Office of Special Counsel for Immigration-Related Employment Practices (OSC). Under Immigration and Nationality Act (INA) § 274B(c) [8 U.S. Code § 1324b(c)], the OSC is charged, among other duties, with responsibility to accept complaints and prosecute employers in civil proceedings alleging any violation of the antidiscrimination provisions of the INA. Prohibited forms of discrimination policed by the OSC include citizenship status discrimination against persons within a “protected class.” Members of this protected class consist solely of American citizens, green card holders, refugees, asylees and temporary residents (if any still exist in that status) recognized as such under the Reagan-era amnesty (legalization) program for agricultural workers and others who violated immigration status in a manner known to the government during a certain period in the 1980s. Foreign citizens not included within the protected class include persons with temporary employment authorization or in work-authorized nonimmigrant visa status such as an E-1, E-2, E-3, H-1B, L-1, TN, O-1 or P or Q visa status. For years now, a number of employers and their immigration counsel have been asking the OSC for help in developing a lawful way to avoid hiring foreign applicants for employment who must be sponsored in the future for work authorization under the immigration laws. There are any number of legitimate reasons why an employer might adopt a policy in which it declines to petition for permission to employ a foreign national:

  • Government filing fees are expensive and increasing;
  • Immigration lawyers must be paid to avoid tripping over red tape and achieve compliance with the INA;
  • The period of future employability could be abruptly cut shorter than needed if the petition is denied;
  • Training new hires costs money that will be lost or not fully amortized if the renewal of work permission is refused;
  • Persons seeking to invoke adjustment of status portability need a special letter from the new employer requiring that employer to attest that the job offered the individual is in the same or similar occupational classification as the former employer’s labor certification application, an application which the new employer may not have seen and never be able to access; and
  • Patriotically, the employer prefers, as the law allows, to hire American citizens and members of the protected class.

For just as many years, the OSC has cautioned employers to avoid posing questions on job applications that might run afoul of the antidiscrimination provisions of the INA. OSC has only allowed two questions that employers can use on the application for employment without fear of a discrimination charge:

1. Are you legally authorized to work in the United States? ___ Yes ___ No; and

2. Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)? ___ Yes ___ No.

The OSC’s historic refusal to allow other questions on job applications because they posed a discrimination risk brings to mind a story, probably apocryphal, told many years ago at an immigration bar conference by my colleague, Mary Pivek:

A group of monks — desiring to smoke cigarettes — wrote to the Pope seeking permission: “Holy Father, may we smoke while we pray?”, they asked. The Bishop of Rome responded: “No.” Some time later in a different monastery, another group of brothers wrote to the Pope with a similar but slightly differently worded request: “Holy Father, may we pray while we smoke?”, they requested. A papal missive came back in reply: “Yes.” The moral of the story is that it’s all in the way you ask the question.

I guess I asked the OSC the right question (that included a preface) and would replace Question 2 above. Here it is:

For purposes of the following question “sponsorship for an immigration-related employment benefit” means “an H-1B visa petition, an O-1 visa petition, an E-3 visa petition, TN status and ‘job flexibility benefits’ (also known as I-140 portability or Adjustment of Status portability) for long-delayed adjustment of status applications that have been pending for 180 days or longer.” (Please ask us if you you are uncertain whether you may need immigration sponsorship or desire clarification.)

Will you now or in the future require “sponsorship for an immigration-related employment benefit?” __ Yes __ No

The OSC — while not offering “an advisory opinion on any set of facts involving a particular individual or company” — nonetheless gave the desired answer:

As you noted, an August 14, 1991, technical assistance letter issued by this office cautions against using overly technical language not easily understood by a lay person. However, because the language you propose to use clearly applies only to temporary visa holders, it does not implicate the INA’s protection against citizenship status discrimination.

Kudos and thanks to the OSC.