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OSC UPDATE

Office of Special Counsel for Immigration-Related Unfair Employment Practices

U.S. Department of Justice | Civil Rights Division April 2004

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) investigates and prosecutes

allegations of national origin and citizenship status discrimination in hiring, firing, and recruitment or referral for a fee, as well

as document abuse and retaliation under the anti-discrimination provision of the Immigration and Nationality Act (INA). In

addition, OSC conducts outreach aimed at educating employers, workers, and the general public about their rights and

responsibilities under the INA's antidiscrimination provision. 

In this issue:

& News and Notes

- Limited English Proficiency 

 Initiative

- Temporary Protected Status

 Extensions

- OSC Investigates Online 

 Job Postings

- SSA “No-match” Letters

- Limited English Proficiency 

 Initiative

- National Origin Working

 Group

- Telephone Interventions

- Employers’ Frequently 

 Asked Questions about Job 

 Postings

- Assistant Attorney General

 for Civil Rights

 

& Case Updates

- Litigation

- Settlements

& OSC Outreach Activities

- Grantee Awards

- Upcoming Events

OSC’s 2004 GRANT PROGRAM APPLICATION PERIOD

OPEN THROUGH MAY 7, 2004 

 OSC awards grants to conduct public education programs about the rights

afforded potential victims of employment discrimination and the responsibilities

of employers under the antidiscrimination provisions of the Immigration and

Nationality Act (INA), 8 U.S.C. § 1324b. Education is an essential element of

OSC’s mission to eliminate employment discrimination against individuals who

are eligible to work in this country. Every Spring, a notice of availability of funds

and solicitation for grant applications appears in the Federal Register. This year,

the application submission period ends on May 7, 2004. For more information, go

to: http://www.usdoj.gov/crt/osc/.

 OSC accepts proposals from applicants whose experience qualifies them to

educate workers, employers, and the general public about the antidiscrimination

provisions of the INA. In the Summer, grantees are notified of their grant awards. 

Grant amounts typically range from $35,000 to $85,000.

The 2003 grantees are:

 

• NYC Commission on Human Rights, New York, NY; 

• Asian Pacific American Legal Center of Southern California

(APALC), Los Angeles, CA; 

• International Rescue Committee (IRC), San Diego, CA; 

• Catholic Charities of Dallas, Dallas, TX;

• Catholic Charities of Houston, Houston, TX;

• Georgia Hispanic Chamber of Commerce, Atlanta, GA; 

• Illinois Dept. of Human Rights, Chicago IL; 

• Catholic Charities of St. Petersburg, St. Petersburg, FL; 

• Legal Aid Services of Oregon, Hillsboro, OR; 

• Hogar Hispano, Catholic Charities of Arlington, Arlington,VA; 

• National Immigration Law Center (NILC), Los Angeles, CA.
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NEWS AND NOTES

Limited English Proficiency

Initiative

 OSC has been an active participant in

the Interagency Task Force on Limited

English Proficiency. The Task Force’s

mission is to ensure that all federal agencies

comply with Executive Order 13166, which

requires Federal agencies to improve access

to services for individuals with Limited

English Proficiency (LEP). OSC lends its

extensive experience with non-Englishspeaking workers to this effort. Among the

issues most cited by LEP Task Force

member agencies is the challenge of

interpretation and translation quality

assurance. 

Recent Extensions of Temporary

Protected Status for

Salvadorans, Hondurans, and

Nicaraguans

 On July 15, 2003, the Secretary of the

Department of Homeland Security (DHS)

extended Temporary Protected Status (TPS)

for nationals from El Salvador for an

additional eighteen months. The extension

of these TPS designations, which expired on

September 9, 2003, will remain in effect

until March 9, 2005. Consequently, the

Employment Authorization Documents

(EADs) for these individuals were

automatically extended until March 9, 2004. 

 On May 5, 2003, the Secretary of DHS

extended TPS status for nationals from

Honduras and Nicaragua for an additional

eighteen months. Those TPS designations,

which expired on July 5, 2003, are now in

effect until January 5, 2005. The EADs for

those individuals were automatically

extended until December 5, 2003. 

 These extensions of work authorization

have been published in a Federal Register

notice, which explains how employers can

determine whether an employee’s EAD has

been automatically extended and instructs

employees on how to reregister for TPS and

how to apply for a new EAD. 

 TPS is granted to persons from countries

that are designated as experiencing war,

environmental disaster, or certain other

conditions that prevent those persons from

returning. 

 TPS was first granted to nationals from

El Salvador in March 2001 because of the

damage caused by severe earthquakes. 

Similarly, TPS was granted to nationals

from Honduras and Nicaragua in January

1999 because of damage caused by

Hurricane Mitch.

Online Job Postings 

 Over the past year and a half, OSC has

investigated online job postings that appear

to impose discriminatory citizenship

requirements. On any given day, various

internet job boards list numerous job

postings requiring that applicants be U.S.

citizens or permanent residents (or “green

card” holders) only. In addition, many job

postings, especially for positions in the high

tech industry, express a preference for H-1B

visa holders only.

 In most cases, it is unlawful

discrimination to require job applicants to

have a particular citizenship status or

immigration status. An employer may

require U.S. citizenship or permanent

residence for a particular job only when

required by law, regulation, or government

contract.

 Employers or online recruiters who wish

to limit their applicant pool to candidates

who are authorized to work in the United

States or who wish to convey that no

sponsorship is available for the position

may state who have the following without

violating federal anti-discrimination law:

“Applicants must be currently authorized to

work in the United States for any

employer,” or “No sponsorship is available

for this position.” 

 Finally, job postings may not express a

preference for H-1B visa holders. While

employers and online recruiters are

certainly free to sponsor candidates,

including H-1B visa holders, they may not

express a preference for H-1B visa

candidates or other individuals requiring

sponsorship or employment visas. 

 Employment opportunities should

generally be made available equally to all

individuals who are authorized to work in

the United States, regardless of citizenship

status. To do otherwise, could

violate federal anti-discrimination

law.

SSA “No-match” Letters

 The Social Security

Administration routinely sends “nomatch” letters to workers and

employers when there is a

discrepancy between the employer’s

and SSA’s records for a certain

taxpayer. Such “no-match” letters

are intended to help taxpayers correct

their SSA files so that they will

receive all of the Social Security

benefits that they are owed.

 However, some employers have

misinterpreted “no-match” letters to

mean that the concerned individuals

are unauthorized workers, and have

taken adverse employment actions

against them based on that

information alone.

 OSC has worked closely with the

Social Security Administration to

address the unintended consequences

of “no-match” letters. OSC and SSA

have worked together to make the

language of the “no-match” letters

less prone to misinterpretation,

clarifying that a “no-match letter”

alone does not indicate that a worker

lacks employment eligibility. Also,

SSA agreed to include OSC’s tollfree hotline number in each “nomatch” letter so workers facing

adverse employment actions can seek

OSC’s help.

 OSC’s staff members frequently

provide assistance to workers who

are facing adverse employment

actions by employers based on the

“no-match” letters, and work closely

with advocacy organizations who

encounter workers facing the

unintended negative consequences of

“no-match” letters.
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OSC’s Telephone Interventions

 OSC’s telephone intervention program is an innovative form of alternative dispute

resolution. It allows a caller to OSC’s employee or employer hotline to work informally with

OSC’s staff to resolve potential immigration-related employment disputes within hours or

minutes, rather than weeks or months, without contested litigation. 

 Employers love the program because it saves them time and money. Employees love the

program because it keeps them on the job.

Employer Hotline:

1-800-255-8155

1-800-362-2735(TDD)

Employee Hotline:

1-800-255-7688

1-800-237-2515 (TDD)

Typical OSC Telephone Intervention Scenarios

1. The “Choosy” Employer

 Employee: (Speaking with an OSC attorney.) I’m a legal permanent resident. I came to the United States when I was

just six, and my Mom still has my “green card.” I just got hired for a really good job, but when I wanted to show my

driver’s license and my unrestricted Social Security card for the I-9 form, the boss said: “No. All aliens have to show a

BCIS (formerly INS) document.” Can you help? I really need this job.

 OSC Attorney: Yes, requiring aliens to show a BCIS (formerly INS) document for I-9 purposes can be illegal document

abuse. If you like, I can telephone your employer and explain the rules about completing I-9s to him. What is your

employer’s telephone number?

 (Employee gives OSC permission to call his employer. In discussing the matter with the employer’s counsel or, if the

employer is not represented in the matter, directly with the employer, the OSC attorney explains proper employment

eligibility verification procedures to the employer. The employer agrees to allow the employee to start work.)

 OSC Attorney: Hi. Good news. I spoke with your employer and now he understands that he can’t tell you what

document you can present for I-9 purposes and that the documents you wanted to present were acceptable. He says you

should call him and you can start right away.

 Employee: That’s great! Thank you.

2. The Hard to Lose Employee

 Employer: (Speaking to an OSC attorney) I have an employee whose EAD has just expired. When I asked him to show

me a new one, he said he applied for it but he hasn’t received it yet. Do I have to fire him?

 OSC Attorney: Maybe not; there are some other options. First, he doesn’t have to show you a new EAD to reverify his

employment eligibility. He can show you ANY document from List A or List C. 

 There are some other options you can try, as well. You can go to www.uscis.gov and check the status of his EAD

application online. If it has been approved, print out the page and you can use that for reverification. If it has been more

than ninety days since he applied for his EAD and he still hasn’t received notice of approval (which can be used) or the

card itself, he can take his receipt directly to his local BCIS district office and it will issue him temporary proof of

employment authorization.

 Please note that each situation is unique, and there are various situations in which an employer would not need

additional proof of current work authorization. For example, individuals under the Temporary Protected Status Program

whose EADs are subject to an automatic extension may continue to work with expired EADs. Furthermore, there are

special rules allowing certain individuals to present a receipt as proof of current work authorization.

 Employer: As a matter of fact, he does have an unrestricted Social Security card. I have a copy of it right here. I’ll just

have him show me the original again and I’ll be all set. I would have hated to lose him; he’s a terrific employee. 

 Thanks.
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Employers’ Frequently Asked

Questions About Permissible

Job Postings

 1. How can I be sure that

applicants for the posted position are

authorized to work in the U.S.? You

can state the following in your job

posting: “Applicants must be currently

authorized to work in the United States

for any employer.” Once you hire a

person, you and your new employee must

complete an Employment Eligibility

Verification Form I-9.

 2. Can’t I just require that

applicants have a “green card?” No. 

A “green card only” (generally used to

refer to a permanent resident card) policy

will almost always violate federal antidiscrimination law. 

 First, “green cards” are only issued to

individuals with a specific immigration

status, namely permanent residents. 

Many other immigrants are authorized to

work in the U.S. but don’t have “green

cards.” Thus, by requiring a “green

card,” you are effectively limiting your

job posting to permanent residents only,

and excluding other categories of

individuals who are authorized to work. 

Requiring applicants to have a particular

citizenship or immigration status is

generally unlawful.

 Second, requiring a “green card” or

any other BCIS (formerly INS) issued

document during completion of the Form

I-9 may also violate federal law. All new

employees should be shown the complete

list of documents acceptable to complete

the Form I-9 and given the choice of

which documents to show to complete

the form.

 3. How can I convey that I am not

interested in sponsoring a candidate

for this position? You may simply

state: “No sponsorship is available for

this position.” In the alternative, as

discussed above in response to Question

1, you may state the following:

“Applicants must be currently authorized

to work in the United States for any

employer.” Candidates requiring

sponsorship are not authorized to work in

the United States for any employer.

 4. May I express a preference for

H-1B candidates? No. While you are

certainly free to sponsor candidates for

positions with your company, including

H-1B visa holders, you may not express

a preference for H-1B candidates or

other individuals requiring sponsorship

or employment visas. Employment

opportunities should be made available

equally to all individuals who are

authorized to work in the United States. 

To do otherwise, may violate federal

anti-discrimination law.

CASE UPDATES

 In the fiscal year 2003, which ran

from October 1, 2002, through

September 30, 2003, OSC reviewed or

investigated 480 charges of

discrimination. In addition, OSC

attorneys and equal opportunity

specialists conducted 194 telephone

interventions in order to educate

employers about their responsibilities

under the Immigration and

Naturalization Act, and to assist workers

in obtaining early resolution to alleged

claims of employment discrimination. 

An unprecedented development in the

work of OSC for the fiscal year 2004 has

been the number of bilateral settlements

between employers and workers that

were prompted by OSC’s initiation of

investigations. As of early March 2004,

OSC had issued 15 letters of resolution

to employers and workers who

voluntarily entered bilateral settlement

agreements fully resolving

discrimination charges and resulting in a

dismissal of the charge. Letters of

resolution are also issued to conclude

independent investigations where the

employer has voluntarily corrected its

practices and no victims can be

identified.

Settlement Reached with Upstate New

York Dairy

 In March 2003, OSC entered into a

settlement agreement with a dairy in

upstate New York resulting in the

dismissal of a complaint filed by OSC in

September 2002. 

 The complaint alleged that the

dairy committed unlawful citizenship

status discrimination when it

discharged and replaced four U.S.

citizen employees with non-citizens

because it allegedly believed that

non-citizens would be harder working

and more dependable than the

American workers, and would be less

likely to complain about the working

conditions. A fifth U.S. citizen

represented by the Farm Workers

Law Project (Legal Aid) also filed

his own complaint.

 Under the terms of the agreement,

the dairy will pay $18,000 in back

pay to the injured parties and a

$1,000 civil penalty. The dairy is

also obligated to use local

newspapers to advertise for future

positions and to notify OSC of all

new hires and terminations. The

agreement will remain in effect for

one year.

Settlement Reached with Nationwide

Trucking Company

 In January 2003, OSC entered into

a settlement agreement with a

nationwide trucking company

resulting in the dismissal of a

complaint filed by OSC in September

2002. The complaint alleged that the

trucking company refused to hire

asylees and refugees because of their

immigration status, and that it limited

its hiring to U.S. citizens and lawful

permanent residents only. 

 Under the settlement agreement,

the company will: change its hiring

policies and practices to allow the

hiring of asylees and refugees, among

other immigrants; pay back pay to the

two named injured parties in the

amount of $13,100; educate its

personnel; post anti-discrimination

notices, and pay a $500 civil penalty.

(Case Updates continued on page 5)
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Meet the New Assistant Attorney General for Civil Rights

In August 2003, R. Alexander Acosta became Assistant Attorney

General for Civil Rights. Mr. Acosta was most recently a Member of

the National Labor Relations Board. Prior to that Mr. Acosta served

as Principal Deputy Assistant Attorney General for Civil Rights. 

 A native of Miami, FL, Mr. Acosta earned his bachelor's degree

from Harvard College and his law degree from the Harvard Law

School. After graduation, he served as a law clerk on the U.S. Court

of Appeals for the Third Circuit and then worked at the Washington

office of the Kirkland and Ellis law firm, where he specialized in

employment and labor issues.

 In 1997, Mr. Acosta left private practice at Kirkland & Ellis to

serve as a fellow in legal studies at the Ethics and Public Policy

Center. Mr. Acosta has also taught several classes on employment

law, disability-based discrimination law and civil rights law at the

George Mason School of Law.

 Mr. Acosta is the 2003 recipient of the Mexican-American Legal

Defense and Education Fund’s Excellence in Government Service

Award for his work on language access to government-funded

services and the DC Hispanic Bar Association’s Hugh A. Johnson,

Jr. Memorial Award.

CASE UPDATES (Continued from

page 4)

Settlement Reached with Las Vegas Casino

 In July 2003, OSC entered into a settlement

agreement with a casino in Las Vegas, Nevada

resulting in the dismissal of a former

employee’s charge of employment

discrimination filed with OSC in July 2003. 

 OSC investigated a claim filed by a Cuban

national and asylee, alleging that the former

employee was terminated by the casino despite

the fact that she had provided sufficient

documentation demonstrating her continued

employment eligibility. 

 During the course of the investigation, OSC

discovered that the casino’s procedures for

reverifying employment eligibility were not in

compliance with the law because it required

many of its employees to needlessly

demonstrate their continued employment

eligibility. 

 Under the terms of the agreement, the

casino agreed to reinstate and provide the

employee with $5,448 in back pay and related

benefits (e.g., sick leave, annual leave, fringe

benefits and insurance coverage).

 The casino also agreed to pay $1,394 in

back pay to another former employee, who was

also wrongfully terminated. Furthermore, the

casino agreed to pay $2,610 in civil penalties,

to post educational notices in the workplace,

and to have its managers trained in INS Form I9 procedures.

Resolution Ends Independent Investigation of

Airline Company

 In October 2003, OSC closed its

independent investigation of and issued a letter

of resolution to an airline company based in

Oklahoma. Although the airline had a contract

with the U.S. Department of Defense that

required that cockpit crew members be U.S.

citizens, the airline had extended the U.S.

citizenship requirement to flight attendants. As

a result of OSC’s investigation, the airline

agreed to remove its U.S. citizenship

requirement from flight attendant recruiting

announcements and to instruct its recruiters

that the U.S. citizenship requirement does not

apply to flight attendants. Because no victims

could be identified, monetary relief was not at

issue.

Resolution Between Private Club and

Naturalized U.S. Citizen

 In November 2003, OSC issued a letter

of resolution dismissing the charge of a

naturalized U.S. citizen filed against a

prominent private club located in

Washington, DC. The individual alleged

that she was terminated despite providing

documentation demonstrating her work

authorization. The club entered into a

bilateral settlement agreement with the

individual pursuant to which it agreed to

pay her $10,000 in back pay. 

Subsequently, OSC conducted training on

the I-9 employment verification process

for the club’s supervisors and manager.

Web Address: http://www.usdoj.gov/crt/osc
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Upcoming Outreach Events at Which an OSC Representative Will Speak:

 Date Location Sponsoring Organization Audience

April 2, 2004 Boston, MA Massachusetts Bar Association

Labor and Employment Law

Employers

April 20, 2004 Dade City, FL Catholic Charities of Saint Petersburg Service Providers

May 3-5, 2004 Washington, DC Church World Service’s Immigration and Refugee

Program

Employers & Employees

May 13, 2004 Atlanta, GA Hispanic Chamber of Commerce Employees

May 14, 2004 Springdale, AR Catholic Charities of Dallas Employers

May 19, 2004 Chicago, IL Lorman Education Employers

May 26, 2004 Albuqueque, NM EEOC Employer Technical Assistance Seminar Employers

May 26, 2004 New York City, NY Lorman Education Employers

June 3, 2004 Pittsburg, PA EEOC Employer Technical Assistance Seminar Employers

July 16, 2004 Dallas, TX Catholic Charities of Dallas Employers

September 24, 2004 Dallas, TX Catholic Charities of Dallas Employers

October 13, 2004 Manchester, NH New Hampshire Commission on Human Rights Employers & Employees

November 17, 2004 Clearwater, FL Florida Department of Children and Families,

Office of Refugee Services 

Employers & Refugees

If your organization is interested in having OSC speak

at educational event, please write to us.

How To Contact OSC

Mailing Address:

Office of Special Counsel for Immigration-Related 

Unfair Employment Practices

U.S. Department of Justice

Civil Rights Division

950 Pennsylvania Avenue, N.W. 

Washington, D.C. 20530 

Main Number: (202) 616-5594 /TDD: (202) 616-5525

Fax Number: (202) 616-5509 

Toll Free Information Number and Worker Hotline:

1-800-255-7688 

(202) 616-5525 or 1-800-237-2515 (TDD for hearing impaired) 

Employer Hotline: 1-800-255-8155

 (Language interpretation available)

1-800-362-2735 (TDD for hearing impaired) 

E-mail Address: osccrt@usdoj.gov 

Web Address: http://www.usdoj.gov/crt/osc 

Special Counsel

Vacant 

Deputy Special Counsel

Katherine A. Baldwin 

Special Policy Counsel

Bruce Friedman 

Special Litigation Counsel

Robin M. Stutman