By Bruce Buchanan, Sebelist Buchanan Law
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The Office of Special Counsel for Immigration-related Unfair Employment Practices (OSC) issued a Technical Assistance Letter (TAL), dated March 31, 2016, stating that an employer may violate the anti-discrimination provision of the Immigration and Nationality Act (INA) by asking questions when verifying employees’ citizenship status under U.S. export control laws, including the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and/or requiring employees to present documents establishing their citizenship or immigration status to ensure the employer’s compliance with U.S. export control regulations.

Before we discuss the specifics of this matter, it is important to remember OSC’s TALs can be helpful in analyzing potential violations but they do not carry the weight of an agency or court decision.

U.S. citizens and nationals, refugees, asylees, and recent lawful permanent residents are protected from citizenship status discrimination under the INA, and are also considered “U.S. persons” under ITAR and EAR. As noted in a February 25, 2013 TAL, ITAR “does not impose requirements on U.S. companies concerning the recruitment, selection, employment, promotion or retention of a foreign person.” Instead, ITAR requires that employers obtain export licenses for non-U.S. person employees if their positions require access to information governed by ITAR. As a result, ITAR does not limit the categories of work-authorized non-U.S. citizens an employer may hire.

Furthermore, the OSC issued another TAL, dated October 6, 2010, stating an employer that implements a document verification process to determine only a new employee’s immigration or citizenship status to comply with export control laws is unlikely to violate the anti-discrimination provision if the document verification process is separate and distinct from the employment eligibility verification process. However, it is vital that the separate and distinct processes do not appear to be integrated.

The proposed questions, being discussed in the TAL, to be asked by employers or their staffing agencies, to job applicants or newly-hired employees, would be prefaced with a statement that the questions relate to “Export Control Laws” and one does not have to answer these questions, if one does not wish to be considered for positions whose activities are subject to the Export Control Laws. However, the proposed document also states if you wish to be considered for these positions, you must answer these questions:

1. I am one of the following: (a) a citizen of the United States; (b) a lawful permanent resident of the United States; or (c) a person admitted into the United States as an asylee or refugee: YES or NO; 2. If you answered “NO” to Question 1, please indicate your (a) Citizenship; and (b) U.S. Immigration Status.

The OSC states that if an employer is hiring for at least some positions not subject to export control laws, it discourages asking the proposed questions for positions that are not subject to export control laws in order to avoid generating confusion among applicants or human resources personnel about the need for this information. Again as previously stated, the OSC cannot make a determination of the lawful or unlawful nature of the questions involving a specific case.
Furthermore, asking questions to job applicants about their immigration or citizenship status for positions that are subject to export control laws may deter refugees and asylees, who are protected from citizenship status discrimination, from applying due to a misunderstanding about their eligibility for the position.

Despite this discouragement, the OSC further opines an employer’s proposed questions of all job applicants or new hires, to determine only whether the employer will need an export license for certain individuals for particular positions, is unlikely to violate the INA’s prohibition against citizenship status discrimination. But if the employer rejected a protected individual’s application based on that individual’s answers, the employer may be engaging in citizenship status discrimination.

As the above TAL and previously issued TALs demonstrate, the subject of questions and information relate to ITAR and EAR is very complicated and needs the input of an experienced immigration attorney.