By: Bruce Buchanan, Siskind Susser

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The Office of Special Counselfor Immigration-related Unfair Employment Practices (OSC) issued a Technical Assistance Letter (TAL) in late December 2015 stating that an employer violates the anti-discrimination provision of the Immigration and Nationality Act (INA) by terminating U.S. workers because of their citizenship status and instead using contract workers with temporary work visas.

Although it is clear that you cannot replace U.S. workers with temporary work visa workers – such as H-1B, H-2B, etc., due to the U.S. worker’s citizenship status, the requestor sought an opinion on whether the same standard applied if the replacements were contract workers. OSC stated the question of whether the anti-discrimination provision was violated through the use of contract workers depends on the facts, including: (1) whether there is evidence of intentional discrimination in the selection of employees for discharge or rehire, (2) the circumstances surrounding the selection of the third party staffing contractor, and (3) the extent to which the original employer could be considered a joint employer of the contract workers. OCS cited several recent settlements concerning unlawful employer preferences for temporary visa holders.

A second question was raised as to whether disparate impact and/or discriminatory intent must be shown to prove a violation of the anti-discrimination provision of the INA. OSC answered that the statute states it must be “because of” citizenship status; thus, only through intent can one prove a violation. OSC added intentional discrimination does not require animus or hostility toward the protected class workers.

As has been discussed in prior blogs, OSC’s TALs can be helpful in analyzing potential violations, although they do not carry the weight of an agency or court decision.