U.S. Department of Justice
Civil Rights Division

Office ofSpecial Counselfor Immigralion Related
Urifair Employment Praclices - NYA
950 Pennsylvania Avenue, NW
Washington, DC 20530

VIA MAIL AND E-MAIL (dstump@usvisagroup.com)

July 2, 2010

T. Douglas Stump, Esq.
Stump & Associates, P.C.
50 Penn Place, Ste. 1320
1900 N.W. Expressway
Oklahoma City, OK 73118
Dear Mr. Stump:
This letter responds to your e-mail of Aprill9, 2010, conceming an employer that does
not wish to sponsor employees for visas. The following question appears on its employment
application: "ATe you authorized to work on an unrestricted basis?" Y ou inquire whether an
employer may terminate an employee who answered the question affirmatively but is, in fact, a
student who possesses an F-1 visa, on the premise that the employee made a false representation.
You also request "sample language that would be acceptable injob ads addressing the fact that
company will not sponsor for H-ls and thus does not want to hire on EADs related to OPT."
As you know, the Office of Special Counsel for Immigration-Related Unfair Employment
Practices (OSC) investigates and resolves charges of national origin and citizenship status
di~crimination in the workplace, inc1uding over-documentation in the employment eligibility
verification process ("document abuse"), and retaliation under the anti-discrimination provision
ofthe Immigration and Nationality Act (!NA), 8 U.S.C. §1324b. OSC cannot provide an
advisory opinion on any specific case or set offacts. However, we can provide general
information on the !NA's anti-discrimination provision and the Form 1-9 process.
The categories of individual s protected from citizenship status discrimination in
recruitment, hiring and firing inc1ude U.S. citizens, lawful permanent residents who are not yet
eligible to apply for naturalization or who have applied within six months of eligibility, asylees,
and refugees. 8 U.S.C. § 1324b(a)(3). Accordingly, F-l visa holders are not protected from
these forms of discrimination.

With respect to questions that may be asked on an employrnent application, OSC does not
recornmend asking applicants to specify their citizenship status at the application stage because a
rejected applicant who is protected from citizenship status discrimination may perceive that that
the employer used that information to discriminate against him or her. Similarly, asking an
applicant if he or she has an "unrestricted" basis for work or temporary work authorization may
be misleading for sorne applicants who are protected for citizenship status discrimination - such
as asylees or refugees - who are work authorized incident to status but may nonetheless pos ses s
work authorization documents with an expiration date.
However, the following question would not raise these concerns, should an employer
choose to use it on an employrnent application: "Will you now or in the future require
sponsorship for employrnent visa status (e.g., H-1B visa status)?" In addition, employers
seeking to notify prospective job applicants injob postings that they are unwilling to sponsor
nonirnmigrant visas may wish to use the following language: "Applicants must be currently
authorized to work in the United States on a full-time basis."
For your benefit, we are attaching a July 31,2008, letter respbnding to a similar inquiry.
We hope that this information is of assistance to you.

wm
Deputy Special Counsel
Enclosure

U.S. Department of Justice
Civil Rights Division
Office ofSpecial Counselfor Immigration Related
Unfair Employment Practices -NYA
950 Pennsylvania Avenue, NW
Washington, DC 20530

JUl 3 1 20080

Re: Request for Guidance on º11:estioning of Applicants
DearM~s• • • •

Thankyou for your letter dated July 2,2008, to the Office of Special Counsel fór
Irnmigration-Related Unfair Employment Practices ("OSC"). In your letter you request guidance
concerning the acceptability of questioningjob applicants regarding their need for future
employment autliorization, Specifically, you inquired as to whether employers may askjob
applicants the foll.owing question:
Do you now or at any time in the future require the filing ofany application or petition
withthe USo Citizenship & lmmfgration Services (e;g., Form 1-765, applicationforo .
employment authorization)?
.
o

o
Please note that the OSC may not provide advisory opinions on any particular case of
alleged discrirnination, or on any set of facts involving aparticular individual or entity.
However, OSC is able to provide sorne general guidelines regarding pre-employrnent inquiries in
light ofthe anti.-c;liscriininationprovisions ofthe Immigration and Nationality Act (!NA), 8
U.S.C. §01324b. These anti-discrlmination provisions prohibit four types of conduct: (1)
citizenship orirnmigration status discrimination; (2) national origin discrimination; (3) unfair
documentary practices during the ernployment eligibility verificatiOri (Form 1-9) process
("document abuse"); and (4) retaliation for filing a charge or asserting rights under the anti
discriminationprovision.
''o
OSC does not recommend that you askjob applicants the aforementioned question.
Instead, the question which former Special Counsel John Trasvina proposed in 1998 and which
you quote in your letter is more appropriate. Specifically, Mr. Trasvina said that employers mayo
ask:
Will you now or in the future require sponsorship lor employment visa status (e.g. H-1B
visa status)?

There is a significant difference betweeIl the two questions. As you know, the class -of
workers protected frcim citizenship status discrimination under the INA inc1udes U.S. citizens,
.lawful permanent residents or conditionalltemporary residents, refugees, and asylees. 8 U.s.e. §
1324b(a)(3). Persons with no right to work in the United States, or persons on temporary work
visas, are not protected from citizenship status discrimination. By defmition, anyone who
requires employer sponsorship for a visa would not fall within the protected class. Thus,
.employers may malee pre-employment inquiries about applicants who require employer visa
sponsorship without violating the prohibitions against citizenship status discrimination contained
.
in 8 U.S.C. § 1 3 2 4 b . ·
In contrast, the question you pose implicates protected persons, who still may have to file
an"application" or "petition" for, inter alia, employment authorization or removal of condition.
While the question, standing alone, does not violate INA'santi-discrÍInÍnation provisionsper se,
there is a risk thatjob applicants may infer, correctly or incorrectly, from the question that an
employer is seeking to deny employment to these protected persons. A rejected applicant may
rely upon such an inquiry laterto allege that the employer' s failure to hire was unlawfully
discriminatory. Moreover, asldng applicants to specify whether or not they will require the filing
of an application for employment authorization with U.S. Citizenship & Irnmigration Services
niay be confusing to them, and may noj elicit the cQrrect information in any event.
We hope that this information is helpfut' Please feel free to cal! ose through OUT to11
free number at 1-800-255-8155, ifyou have further questions about this matter.
.
. Sincerely,

. Special Counse!

2


U.S. Department of Justice
Civil Rights Division
Offiee ofSpecial Counselfor Immigration-Related
Unfair Employmenl Practiees NYA
950 Pellnsyfwlnia Ave, NW
Washillglon:DC 20530
Main PO]) 6/6+5594
Fax PO]) 616-5509
+

June 29, 2010
BY CERTIFIED MAIL AND EMAIL (apaparelli@seyfarth.com)
Angelo Paparelli, Esq.
Partner
Seyfarth Shaw LLP
620 Eighth Avenue, 32nd Floor
New York, NY 10018
Dear Mr. Paparelli,
This is in response to your email dated May 11, 2010. In your email you asked fOE
guidance frOID the Office ofSpecial Counsel for Irnmigration-Related Unfair Employrnent
Practices ("OSC") conceming pre-hire questions that make clear that your client will not hire
applicants who require sponsorship for nonimmigrant visas as well as applicants holding an
"open rnarket Employrnent Authorization Document derived in connection with the submission
of an adjustment of status application and an employrnent-based 1-140 petition" pursuant to the
American Competitiveness in !he 21st Century Act, 8 U.s.e. § 11540).
Yon reference two questions that have been previously recommended by OSC as
appropriate questions for employers who do not wish to hire nonimmigrant visa holders:
l. Are you legally authorized to work in the United States? _ Yes _ No
2. Will you now or in the future require sponsorship for employrnent visa status
(e.g.,H-IB visastatus)? _Yes_No
You further indicate that joh applicants holding ::ln "open market Employment
Authorization Documenf' typically answer "no" to the frrst question but also ofien answer "no"
to the second question as well. Because your client would be required by U.S. Citizenship and
Irnmigration Services ("USCIS") to submit a letter confrrming that an individual with this status
is employed in the same or a similar occupational classification in order for the agency to grant
lawful permanent residency to the individual under 8 U.S.C. § 11 540), your client does not wish
to hire such individuals either.
Accordingly, you would like to know if the following question 2 suggested below would
be permitted as an altemate to OSC's suggested question 2:

For purposes ofthe following question "sponsorship for an irnmigration-related
ernployrnent benefif' rneans "an H-IB visa petition, an 0-1 visa petition, an E-3
visa petition, TN status and 'job flexibility benefits' (also known as 1-140
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 are uncertain whether you rnay need irnmigration sponsorship or desiIe
clarification.)
Will you now or in the future requiIe "sponsorship for an irnmigration-related
ernployrnent benefit?" _ Yes _ No
As you rnay know, OSC is responsible for enforcing the anti-discrimination provision of
lhe Iromigration and Nationality Act ("!NA"), 8 U.S.e. § 1324b, which prohibits national origin
discrirnination, citizenship status discrimination, unfair documentary practices (document abuse)
during the ernployment eligibility verification (Form 1-9) process, and retaliation, Only certain
"protected individuals" are protected from citizenship status discrimination. These individuals
include United States citizens, United States nationals, ternporary residents, recent lawful
pennanent residents, refugees and asylees.
1bis office cannot give you an advisory opinion on any set offacts involving a particular
individual or cornpany. However, we can provide sorne general guidelines regarding compliance
with the anti-discrimination provision ofthe INA. Because ternporary visa holders and
applicants for adjustment of status to permanent residence are not protected from citizenship
status discrimination, an employrnent decision made exclusively on the basis of an individual' s
status as a temporary visa holder or as an applicant for adjustment of status to permanent
residence would not run afonl ofthe anti-discrimination provision. Thus, decisions not to hire
individuals based solely on theiI need for visa sponsorship or their need for a written ernployer
submission to USCIS, either currently or in the future, would generally not be actionable under
the INA's anti-discrimination provision.
As you noted, an August 14, 1991, technical assistance letter issued by this office
cautions against using overly technicallalJ.guage not easily understood by a lay persono
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.
Letter frOID Katherine A. Baldwin, Deputy Special Counsel, ose, to Montserrat Miller,
Attorney, Greenberg Tranrig, LLP (August 12, 2009); Letter from Kalherine A. Baldwin, Deputy
Special Counsel, OSC, to Steve Nadel, Attorney, Ahlers & Cooney, P.C. (May 1,2009); Letter
from Patrick Shen, Special Counsel, ose, to Sarika l. Garg, Attomey, Berry Appleman &
Leiden LLP (July 31;2008); Letter from Patrick Shen, Special Counsel, OSC, to Patricia
Garmon, Attorney, Greenberg Tranrig, LLP (July 31, 2008); Letter from Patrick Shen, Special
Counsel, OSC, to Gregory Siskind, Attomey, Siskind Susser Bland CMay 15,2008); and Letter
from Patrick Shen, Special Counsel, ose, to Janet V. Elizondo, Deputy Director, U.s. Equal
Employrnent Opportunity Commission DalIas District Office (January 15,2008); and Letter
from Patrick Shen, Special Counsel, ose, to Leslie K. L. Thiele, Attorney, Whiteman Osterman
& Hanna LLP (ApriI24, 2007), copies ofthe cited letters are attached. Please note, lhough, lhat
the INA does protect ternporary visa holders from national origin discrimination by small
employers with 4-14 workers, discrimination in the Form 1-9 process, and retaliation.

Please feel free to contact us on our toll-free hotline (1-800-255-8155) or visit our
website www.justice.gov/crtlosc,ifyouhavefurtherquestions regarding immigration-related
employment ~iscrimination. We hope tbis information is of assistance to you.

s~

~~a1
Deputy Special Counsel

,

•

U.S. Department of Justice
Civil Rights Division

Office of~cjal COUTlSt/jDr lmnrlgratlon &/a/td

U'I!alr Empl~nl ]>n,cticu. NYA.
9'0 PanlU)'lvanla AYemlC. NW
Wa:hlnglJm. DC 20530

August 12;2009
Montserrat Miller, Esq.
Greenberg Traurig, LLP
1750 Tysons Boulevard, Suite 1200
McLean, VA 22012
Dear Ms. Miller:
This is in response to your July 15, 2009, letter to !he Office of Special Counsel for
Immigration-Related Unfair Employment Practices (OSC), In your letter, you roqueS! guidance
regarding pre-employment questions for job applicants whd are temporary nonimnrigrant visa
holders, such as H-IB visa holders, and whose visas will expire in ane year Dr less. Specifically.
yau referenced our April24, 2007. technica1 assistance letrer, wmch suggested the following pre~
employment advisoxy: "Tbis employer will not sponsor applicants for tbe following work visas: _
_ ." You!hen asked!he following questions:

i. [W]hat if a company does in fact sponsor individuals for H-lB visas but!he
problem arises when someone has less than Qne yea¡ of lawful emploYD;lent status
remaining?' .
2. What ifan applicantresponds YES te the qu"estion thatthey "now'or in fue
future require sponsorship for an employment visa"? Can an eroployer follow up
that response by asking what type of visa one holds and how much time remains
on their current visa and if it is ane year aI less not hire th~ individual?
. 3. In !he alternative, is it acceptable on !he job application iD state, "lfhired, can
you provide proof th.at you are legaliy able to work in fue Unitcd Sta1e3 for at least·
12 months"? and if!he person answers NO !hen not hire !he individual?
PIease note that ose cannot provide an advisory opicion on any set offacts involving a
particular individual aI entity. Hawever, we can pIovide some general guidelines regarding fue
anti-discrimination provision of!he Immigration and Nationality Act (]NA), 8 U.S.C. § 1324b,
and employer actions under that provision.
As you may knaw. ose is responsible for enforcing fue arrti-discrimination provi~on of
!he !NA, which prohibits natioual origin discrimination, citizensbip status discrimination, unfair
documentary practices (document abuse) during the employment eligibility verification (Form I~
9) process, and retaliation. Only certain "pratected individuals" are protected from citizenship

status discrimination. Thes~ individuals include United States citizens, United States nat1onals,
temporary res.idents, recent lawfu1 permanent residents, refugees and asylees.
We will address yOU! first two questions in conjunction. An individual who requires
employer spoDSorsbip for a vi~a, such as an H-IB visa holder, is not a protec~d individual under.
8 U.S.C. § 1324b for citizenship status discrimination. Therefore, "pre-emplbyment inquines
about applicants who' require employer visa sponsorship" do not violate tb.e prohibitions agaínst
citizenship status discrimination in 8 U.S.C. § 1324b. Letter from Patri¿k Shen, Special Counsel
OSC, te Patricia Gannon, Greenberg Tramig, LLP (Jul. 31, 2008), a copy ofwbich is attached.
Tbís would inelude inquiries relating 10 the ex:piration date ofthe H-IB visa Additionaliy,
employment decisions made exclusively on the'basis of a worker's H-IB status, oIother
temporary, nonimmigrant status, would not violate the citizenship status discrimination provision
of 8 U .S.C. § 1324b. Letter from Katherine A. Baldwin, Deputy Special Counsel, OSC, lo Steve
Nadel, Attomey, Ahlers & Cooney, P.C. (May 1, 2009), a copy ofwbich is attached.
However; please note that a1l work autborized individuals, including H-IB visa holders
are proteeted from national origin discrimination and docurnent abuse under 8 U.S.C. §
.
1324b(a)(l)(A) and (a)(6), as well as from retaliation under 8 U.S.C. §1324b(a)(5). See Letter
from Katherine A. Baldwin, DeputySpecial Counsel, OSC, lo Leslie K-L. Tbiele, Attomey,
Whilernan Osteanan &.Hanna LLP (Apr. 24,2007) (on file with OSC). See also United States v.
Diversified Tech. & Servs. QfV•. , Inc., 9 OCABOno. 1095 (2003) (relief ordered for al! victims
of document abuse witbout distinction as to status as a "proteeted individual 11); United Btates v.
Townsend Culinary, Inc., 8 OCABO no. 1032 (1999) (same); Uniled States v. Guardsmark. Inc.,
3 OCABO no. 572 (1993) (al! work authorized individuals are prolected from documenl abuse).
Wifu respect. to your third question.,
please be aware 'friat askingjob applicants for proof
.
that fuey are legally able 10 work in th.e United States for at least twelve months may result in fue
rejection of applicants who are protected from citizenship discrimination under tb.e anti
diserimination provision of fue WA. Certain "protected individuals" whose work authorization
is incident to th.eir status, sueh as lawful permanent residents, asylees, and refugees, may
nonetheless possess an employment authorization document which expires in one year or less,
even tbough they are aufuorized to workindefinitely and are entitled to an unrestricted Social
Security eard. Thus, although fue work authorization document of such índividuals may expire
in less than twolve months fram the date.oftheir job application, fuey colltinue to be autboIized
to work when that document expires. 1 In sum, refusID.g to hire jcib applicants for failure to

J As the United States Citizenshíp and Immigration Services (USCIS) Handbook far Employers.
lnstructjops fQr CompletingFimn 1-9 CEmployment Eligibility VerificatiQp FQqn), Apr. 2009, at 12,
explains:

Future'expiratiOI! dates may appear en tbe empleyment authorizatioD documents oí
aliens, including, among otbers, permanent residents and refugees. USCIS includes
expiration dates even on documents issued to aliens witb permanent employment

-2

provide proof of at least twelve months' employment eligibility may result in the disparate
. treatment of "protected individuals" in the hiring process on the basis of citizenship status under
8 U.S.C. § 1324b.
I hope this information is helpful. Please feel free to call OSC through our toll-free
number at 1-800-255-8155, if you have frniher questions about tIlls matter.

m
Deputy Special Counsel
Enclosures

authorization. The existence of a future expiration date:
1. Does not preclude continuous employment authorization;
2. Does not mean that subsequent employment authorization will not be
granted; and
3. Should not be considered in determining whether the alien is
qualified for a particular position.

U.S. Department of Justice
Civil Rights Division

Offir;r; of Spl:cfaf Cuunuljor Immigrolion R!laled
Unfatr Employment Practicu - NYA
950 PeM$)lNania AlII!nu~, NW
Wa!hinglon, DC 70530

)

MAY 011009

BY EMAlL (snactel@ahlerslaw.com)
Steve Nadel, Esq.
Dear Mr. Nadel:
·This is in response to your email to Linda White'Andrews, dated March 31, 2009. In
your email, you ask for written confirmation from the Office.of Special COlU1sel for Immigration '
Related Unfarr Employment Practices (OSC) that your understanding of the answers to the
questions set forth below is consistent with the anti-discrimination provision ofthe Immigration
and Nationality Act (INA). Your questions and answers are as follows:
l. It is my ilnderstanding it is legal for an employer to ask the followmg questions in an
employrnent application and during an interview (I aro providing multiple versions ofthe
same g~neral question - it is my understanding that áll of these versions are legal and can
.
be asked by an employer):

a. Will you now or in the future require sponsorship for employment visa status,
for i~tance, H-IB visa statús?
.1>. Will you now or in the f.Jture require sponsorship for employment visa status

(for instance, H-1B visa status)?
c. Will yo_u now or in the future require sponsorship for employment visa status,
-including but not limite.d to H-IB visa status?
2. 1t is rny understanding an employer has no duty-to sponsor-inQividuals for
employment visa statQs, aqd that this is true with regard to applicants as well as any
current employees losing OPT status.
3. It is rny understanding that if an applicant mn need sponsorship at any time, for
example, even 27 months in the future. the employer can reject the applicant for tbis
reason.
4. It is my underStanding that if an employer discovers it has hired sorneone who will
need sponsorship in the future, the employer can, term.mate the individual on this basis
even if the need for sponsorship will not occur until some time in the future. for example,

'1

when the need for sponsorship will not occur for 15 or 20 rnonths. In other words,
employment decisions based on a need for sponsorship are l.egal, regardless of whether
the need for sponsorship exists now or will exist in the furure, and regardless of whether
the individual is an applicant or a current employee.
5. 1t is my understanding that the same principIes apply to aU types of employment
sponsorship, including H-IB and green card sp"onsorsrup..,... fuere is no duty to sponsor,
and the need. fer sponsorship now or in·the future is a legitimate basis for employrnent
decisions.
6. It is my understanding that because an employe.r has no duty 10 sponsor, and no duty
10 hire persons who will need sponsorship in the future, an'employer rnay draw lines in its
decision--m.aking tbat are m'Ore favorable to such individuals. For instance, an employer
can detennine that it will consider hiring persons who will need sponsorship in thy future
if tbe need for sponsorship wiil not arise until sorne identified time in tbe future, for
example, at least 20 montbs from date of hire. (In otber wotds, when. the individual will
be able to work for at least 20 months before employrnent eligibility is lost, or any other
threshold period of time the employer feels is sufficient to justify th.e training time, hiring
tosts, etc., that may be incurred). Further, ifthe employer hi,res such an individual, the
employer would have no duty to Sponsor fue individual when tbe time comes, and when
the employment eligibility is lost .the individual can then be t"erminated as a result.. "
7. 1t is my understanding an employ~ can establish different policies per department or
even per job category. For example, if an employer were to determine tbat for sorne
positions it will no! hire anyone wno will need sponsorship naw or in tbe future; for 6ther
posítions tbe employer will hire ifthe need for sponsorship will not occurJor at least two
years (but fue employer will not sponsor when the time comes); and for other positions
the employer could agree tQ sponsor individuals.
As you may be aware. ose enforces the anti-discrin;lination provision of the!NA. The
anti-discrimination provision prohibits four types of employment.related discrimination:
citizenship or immigration status 'discrimination; national origin discrimination; unfair
documentary practices during the employment eligibility verification (Form 1-9}process
edocument abusen); and retaliation for filing a charge, assisting in an investigation, or asserting
rights U1J,der the anti-discrimination provision. On1y u.s. citizens or nationals; recent perníanent
residents, refugees and asylees are protected from citizenship status-discriinination. I

I Only persons defined as "protected individuals" under the INA § 274B(a)(3) are protected from
citizenship status discrimination. A "protected individual" is defined as "a citizen ofthe United States, or ... an
alien who is lawfully admitted fur pérmanent [or] ... temporary residence, ... is admitted as a refugee, ... or is
granted asylum .. '. but does no! include an ... aUcn who fails to apply for naturalization within six months ofthe
date when fue individual first becomes eligible-... to apply for naturalization . . "

2

.. ' .

'Ibis office cannot give you an advisory opinión on any set oí facts involving a particular
individuhl or company. · However. we can provide some general guidelines regarding compliance
with the anti~discrimination provision ofthe INA. Because temporary visa holders are not
protected from citizenship status d¡scriminapon, an employment decision ~ exclusively on
fue basis of an individual's status as a temporary visa holder would Dot run afoul ofilie anti
discnmination provision. Thus, decisions not to recruit. or to hiTe 'o r fue individuals based solely ,
on their need for visa sponsorship. eitber currently or in the future, would generally not be .
actionable under fue INA's anti-discrimination provision. Of course, such employrnent decisions
must be made without the intent to discriminate against the applicant or employee based on their
national origin or to retaliate ag~ a person for activity that ~s. protected under the statute.

.: .

. :.
PIease feel free tO contact us on our toll-free hotline (1 -800-255-8155) OI at our website
wwW.usdoi,gov/crt/osc. ¡fyou have further questions regarding immignition-relat~ employment
.
discrimination. We hope this infonnation is of assistance to you.

,.

I

I,

¡

....,...amerineA. Balrl'Win
Deputy Special CO\lIlSel

.,
.,

,,

"",
(V

" ',

.

.~

U.S. Depal1ment of Justice

Civil Rights Division

o

Office qf~cfal COW/Jelfor ¡mm/gration Relaled
Urifair EmploylMnt P1'Qctices - NYA.
9S0 PeMS}'IwmiaAvelllit , NW
WashlngtOl1, De 20S30

July 31, 2008
VIA E-MAIL (sgarg@usabal.com) .
Sarika 1. Garg, Esq.
Berry Appleman & Leiden LLP
7901 Jones Bran.ch Drive
Suite 320
McLean, VA 22102

Re:

. ..

"

Document Number 290335

Dear Ms. G~g:
ThaÍllc you for yaU! electrOnic ~ to the Office of Special Counsel fOl" Immigration. _.
related Unfair Employrnent.Practices (OSe). dated May 20, 2008.-, In your message, you present",· '.
a number of seenarios associated with the requirement to verify employrnent eligibility. In sum, 1" . ': .
understand yaU! questions to be as follow:
1. How far maya business gO.in requesting 10 view documentation, such as
imrnigration documents or 1-9 forms, fróm employ~s oi a contractor (such as a
staffing agency)? May the business require fue agency supplying the workforce to
.inde~ it in case there is a violation?
. .
.
2. How ean: employers protect themselves from employer sanctions for illegal
hiring when dealing wj,th an independent contractor? Are employers excused
.frOID :verifying the employment a~orization ofin~ependent contractors? .Should
.the empltiyer ask the workers to SlgIl a contract statmg that they are authonzed for
. employment in the United States?
3. 1s it a violation of the anti-discrimination provisions of the hnmigration ando
Nationality Act (!NA) to askjob applicants, prior to the job offer, whetherthey .
ate legally authorized to work in the United States, and whether they will require
inunigration visa sponsors1!ip for ernployment? May job applicants be required too
sigo. an attestation to tbis effect?
..
.
First, pIease be advised that the ose may not give an advisory opinion on any set of facts
involving a particular company or individual. However. 1 a.m happy to provide sorne general.
guidelines as to the anti-discrimination provisions ofthe!NA (ccdified in 8 U.S.C. § 1324b),
. which ose enforces. These anti-discrirnination provisions prohibit foUT types of conduct: (1)
citizenship or irnmigration status discrimination; (2) national origin discrimination; (3) unfair
documentary practices during the·employment eligibility verification (porm I-9) process
('document ab1l:Se"); and (4) retaliation for filing a charge ar asserting rights under the anti
discrimination provision.

Letter to Sarika 1. Garg, Esq.
luly 31, 2008 ...
Page 2 .

.,

Many oí the issues rai~ in tbe :fu$! and second sets oí questions provided aboye fall
.
within !he purview of!he Departmenl of Homeland Security (DHS), whieh enforees !he lam
related to hiring unauthorized. workers under INA § 274A, 8 U.S.C. § 1324a. As·such, 1 strong1y ..'. ..: . ,
encourage you lo seek gtiidanee from DHS's U,S, Citizenship and hnmigration Seryiees (USCISl
":
tbrough its Offie,e ofBusiness Liaison by calling 1-800-357-2099, or by fax al (202) 272-1 865, ::
In addition, th~ Handbookfor Employers, Instructions for Complettng the form 1-9 (Employment
Eligibility Form),published by USCIS, contains answersto eommon questions dealing wi!h 1-9 ", :','
completi.on and employment eligibility ve¡jfi.cation. A copy of this document is available on th.e. ·
web at http://www.uscis.gov/files/nativedocuments/m-274.~df.
As a general rule, ose will not find reasonable eause to believe discrimination has
occurred simply because employers require that all employees and.eontract workers be
authorized to work; nor would ose find that demanding to see the Form. 1-9 doeumentation for ..
employees provided by a staffing agency is a per se violation ofINA § 274B.· However, in doing:
so, employeIS may not act in a discriminatory ~anneI nor tiea~ employees disparate!; because of ..
national origin or eitizenship status. Moreover, employe.l's may be liable for discri.miI1atory
behaviot tewards empioyees a staffing agency provides ifthere is a jOlnt-employer relationship ....~ .'
It is OSC's longstanding practice to examine the tetality of evidence when determ.i.ni..tig whether .
there is reason tO "believe !hat discrimination has occurred.
In your second and third sets of q~estions, .You qUeIy whether a:n eniployer may require
..
independent contractors or jo1;l applicants te sign a contract or otb.erwise attest that they are
' ..
authorized to work, anq. that fuey do not require visa sponsorshlp. ose cannot provlde legal . .:: ..... :. ....
8dvice on the advisability of agreements between employers and independent contractors te
... ';:.
ensure the.employment eligibility of contraet workers. Keep in mind, ho.wever,!hat an.employer:~ :.
may not cireumv~nt its verification obligations by treating anoemployee as' an independent· .. ..
.... ..
c(;mtractor, and e.annot impose such agreements in a: discriminatory manner.
,

Additionally, there already is a requirement for employees and employers te attest to
work authorization and verifieation thereofby eo.mpleting fue FoI1l,l I-9. By law and USe1S
poliey, the I-9 must be completed after tb.e employer makes a fumjob offer and within three dayS'
of tbe commencement of employment. Therefore. requiring a job applicant to attest to
. , ..
employmént eli gibility prior .to receiving an offer of employment may be i.rD.permissible pre- .
screening. Because discriminatory practices frequentIy are associated with pre-screening, ose ·
will investigate an employer for a potential violation of the anti-diserimination provision ~f tbe
INA whenever there is an allegation of pre-sereening .. Additionally, pre-screening practices may .
be found lo violate!he laws !hal DHS enforees, See 8 C,F.R. §,274a.2(b) (2008)..
" . ' '
Finally, fue prohibition against citizenship status discrimination does Dot require tbe
.. . :...
employer to petition for a visa on a.ri.y worker's behalf. However, to avoid the ~ppearance of , .. .
citizenship status discrimination, ose recommends that you ask on1y whetber th.e applicant wiU" . ." .
need visa sponsorship, not what specifie eitizenshlp status th~ applicant currentIy holds:

,

. '.

Lette.r 10 Sarika t. Garg. Esq.
JUIy 31, 2008
Page3

1hope this Ínformation is of assistance to you. For further information regarding ose, or
Ihe !NA's anti-discrimination provision, please reel free 10 cal! us al 1-800-255-8155.
Sincerely,

;(~~
Special Counsel

. .. ..'

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.. .
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.

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. .'

:,

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V.S. Department of Justice
Civil Rights Division
Office ofSpecial COllnselfor Immigration Related
Unfair Employment Practices - NYA
950 Pennsylvania Avenlle, NW
Washington, DC 20530

JUl 3 1 2008

Ms. Patricia Gannon
Gre~nberg Traurig, LLP
MetLife Building
200 Park Avenue
New York, NY 10166
Re: Request for Guidance on Ouestioning of Applicants
Dear Ms. Gannon:
Thank you for your letter dated July 2, 2008, to the Office of Special Counsel for
Immigration-Related Unfair Employment Practices ("OSC"). In your letter you request guidance
concerning the acceptability of questioning job applicants regarding their need for future
employment authorization. Specifically, you inquired as to whether employers may askjob
applicants the following question:
Do yau naw ar at any time in the future require the filing afany applicatian ar petitian
with the USO Citizenship & 1mmigratian Services (e.g., Farm 1-765, applicatianfar
emplayment autharizatian)?
Please note that the OSC may not provide advisory opinions on any particular case of
alleged discrimination, or on any set of facts involving a particular individual or entity.
However, OSC is able to provide sorne general guidelines regarding pre-employment inquiries in
light ofthe anti-discrimination provisions ofthe Immigration and Nationality Act (INA), 8
U.S.C. § 1324b. These anti-discrimination provisions prohibit four types of conduct: (1)
citizenship or immigration status discrimination; (2) national origin discrimination; (3) unfair
documentary practices during the employment eligibility verification (Form 1-9) process
("document abuse"); and (4) retaliation for filing a charge or asserting rights under the anti
discrimination provision.
OSC does not recommend that you ask job applicants the aforementioned question.
Instead, the question which former Special Counsel John Trasvina proposed in 1998 and which
you quote in your letter is more appropriate. Specifically, Mr. Trasvina said that employers may
ask:
Will yau naw ar in the future require spansarship far emplayment visa status (e.g. H-l B
visa status)?

There is a significant difference between the two questions. As you know, the c1ass of
workers protected from citizenship status discrimination under the INA includes U.S. citizens,
lawful permanent residents or conditional/temporary residents, refugees, and asylees. 8 U.S.C. §
1324b(a)(3). Persons with no right to work in the United States, or persons on temporary work
visas, are not protected from citizenship status discrimination. By definition, anyone who
requires employer sponsorship for a visa would not fa11 within the protected c1ass. Thus,
employers may make pre-employment inquiries about applicants who require employer visa
sponsorship without violating the prohibitions against citizenship status discrimination contained
in 8 U.S.C. § 1324b.
.
In contrast, the question you pose implicates protected persons, who still may have to file
an "application" or "petition" for, inter aUa, employment authorization or removal of condition.
While the question, standing alone, do es not violate INA' s anti-discrirriination provisions per se,
there is a risk thatjob applicants may infer, correctly or incorrectly, from the question that an
employer is seeking to deny employment to these protected persons. A rejected applicant may
rely upon such an inquiry later to a11ege that the employer' s failure to hire was unlawfully
discriminatory. Moreover, asking applicants to specify whether or not they will require the filing
of an application for employment authorization with U.S. Citizenship & Immigration Services
rriay be confusing to them, and may not elicit the correct information in any event.
We hope that this information is helpful. Please feel free to ca11 OSC through our to11
free number at 1-800-255-8155, ifyou have further questions about this matter.
Sincerely,

d~

-a.~~n

Special Counsel

2

U.S. Department of Justice
Civil Rights Division

SpeciaI Counse! forlmmigratioll Related .

Urrfair·Employment Practicu' CRT
950 PDllIIYlVOlIia Avenue, N.W. (NYA)
Wa$hillglon, De 20530

M.y 15, 2008
By Email (gsiskind@visal.w.com)
Gregorjl SisJillid, Esq.
Siskind Susser Bland
1028 Oakhaven Road
Memphis, Tennessee 38119
. Dear Mr. Siskind:
Tbis is response to your email to Katherine Ba1d~ ·dated February 5. 2008. Please
excuse our delay in responding. In your emait you inquire whether ·persons who do not fall
witbin lhe definition of "protected individuals" under 8 U.S.C: §1324b(.)(3) are protected from
"document abuse" .or other forms of discrimination under the anti-discrimination provisions of
lhe Immigr.tion and N.tionality
Act (!NA), 8 U.S.C.§1324b.
.
.
While this Office cannot give yOl!- an advisoiY opinion an any particular case of alleged
discrimination, ar on any set of facts involving a particular individual OI entity. we can provi·de
information as to fue ·scope ofprotections afforded under the anti-discrimination·provisions of
lhelNA.
As you may know. under the anti-discrimination provision ofthe lNA, U.S. citizens, U.S.
nationals, temporary residents,recent lawful permanent residents (and tho.s e wha have applied
for and completed the naturalization process within a statutorily prescribed periad), refugees and
asylees are lIprotected individuals" wiili standing to assert citizenship status discri.ntinatian
claims. In contrast, non-immigrant visa holders, such as H, L, J and F .visa holders, Temporary
Protected Status (TPS) receipients and other authorized workers, do not fall within the class of
protected individuals, and are not protected from citizenship status discrimination.
However, all work authorized individuals are protected froro national origin
discrirnination and docurnent .buse under 8 U.S.C. §§ 1324b(.)(I)(A) and (.)(6), as well as from
retali.tion under 8 U.S.C. §1324b(.)(5). SeeLetter from Kalherine A Baldwin, Deputy Special .
Counsel, dated April 24, 2007, a copy af which is attached: See also United States v. Diversifled
Technology& Services oIVA, Inc., 9 OCAHO No. 1095 (2003) (relief ordered for all victims of
document abuse without distinction as to status as a ''protected individual"); United States v.
Townsend Culinory, Inc., 8 OCAHO No. 1032 (1999) (same); Uniled Stales v. Guardsmark, 3
OCARO No. 572 (1992) (all work authorized individuals are protected froro d"ocument abuse).
But see Ondina-Mendez·v. Sugar Creek, 9 OCAllO No. 1085 (2002) (protec~on against

document abuse based on citizenship status extends only to ''protected individuals" witbin the
meaning of 8 U.S.C. § 1324b(a)(1».
We hope that the information provid.ed above is helpful. If yon would like further
information on the !NA's anti-discrimination provisions, please consult our website at
http://www.usdoj.gov/Cl1losc/index.html,orcallourtelephonehotline at 1-800-255-8155.
Sincerely,

~~
Pamck Shen
Special Counse!

Ene!osure: OSC Teebnieal. ÁBsistant Letter, dated April24, 2007

.-- _. -_._---=-._,.._..

V.S. Department of Jus·t1ce
Civil Rigbts DivisiQn

KJl:MH:JS:WG
CE: 261381

.

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Dear~._

ro

. This is response 1;0 yourinquiiy dated N~er 22, 2006, ·to.our Office regarding
. certain. qUestiODS that.your cIient ·prOposes to askjob applicants regarding theit wark
au1hotization. .We apologize for 1he·delay of Out.reSJl?DSe.
.

,

.'Í'his oifid cannot give y® an advisory opiniOD on 8ny particular cause of áneged
diacriminatipD. or.on any set of~ mvolving a particular individ~ or entity.. However, we
93.D provide somo general guideUnes reg8rding pre-em.ploym.ont inqulljes under. the anti.
discriminanon proVision" ofthe Immigration and Nationality Act (!NA), 8 U.S.C. § 1324b.'
.
·Yout1etter notes that )'olir cli~t wishes to pose two·quest;LoÍls to appli~ :related te
theirwork aufhorizatioil. You asky¡hether itis legaUypennissible foc an employment.
.
application. to conf:ain tbe f'ollowing qu.e~o:n: .
. ..
Do you have Unrestnc/ed Un1te~ Stotes W?rk Authorization? .

tfyou are a U.S. cltizep., pcnnanentresident alien, tcmporary rcsident a1i~ applicant for
tempor.uy rcsident Statos,refugee, OI asylee, yoo bave Unrestrlcted u.s. W-orkAuthorization.·lí
you are Pn an F, J, H, L, oi any otber nO~7immigrant visa. yau do not
o Yes, 1 have Unrestncted .o.S. W~rk Authorizatian.
O No, 1 d~ not have Unrestricted U.S. Work Autlwrization.

Your client's second questian is posed as afollow-up question to the·firsi questi.on. You
ask whether it is legally permissible to presont fue following list-of."visa status'· optiOrls to an
a:pplicant who haS answere~ ''no!' to fue fust question;
.
D (1)

1 have started an applicanoD fu.r U.S. PCIlll8Uent Res.idency wifu my empl.oyer, as a self

"

,

petitioner, or as fue immediate -relative ofa. U.S. citizen.
D (2)
D (3)
Ó (4)
D (5)
[J (6)

!

1 am current1y on an F·l visaar utilizing ~ OPT (Optional Practical training).
1 am ccrrently on a J or L ViSL
.

!

1 am CUIreÍltly on a TN Visa.
1 aro currently on an H-IB yi;a tbroUgh Ul acadenrlc instlÚlúon or not-for-protlt
··
.
"
employer.
1 am currentIy en a U.S, visanotmentioncd above (ex: Bl, B2, or visa waiver) or 1donet
have a:ny U.S. work autborization at all. .

. I

I

..,
!

,

•

As you are probably aware, !he !NA prohibits citizenship status and natianal origin
disciimination with respect to biring, terminatipn,. and I:ecruiting or referring for afee. See
. 8 U.S.C. § .1324b(.)(1)(BJ. nelNAalso prohibits employon; from engaging in "document
abuse" oi: over~doC?Umentation in fue employment eligIbility verificati~ ptocess .(§ 1324b(aX6))
andretaliatOly condue! (§ 1324b(aX5)).
.
•
Citizenship status ,discrimination <locura whcn protected índividuals 1 are not hired
beq8nse oftheir real or perceivod immigration ot citizcnmi}l .status, al becausc·.oftheir type of
work authorization, but the PfOb:ibítion does not extep.d to discrinJination tD.at is otherw:ise .
req0ire9. in or4et to comply witb. IIlW, regulation, m;;ecntive order, or Fedenil, State. or local
.
.
.
govenunenl Co~ 8 U.S.e. § 1324b(.X2)(C).

I

i
I,

!

. Wbne uon-immigrant visa holders are llot protected from citizensbip sf?tus

disyrimina#on, all work.-autborized individuals; iDclwfuíg many nOll-imnrigrant visa holders, are
protected under the rnA's.promoitions Bgainst.national origin discriminatien and documcnt
abuse. 8 U.S.C. §§ 1324b(a)(1)(A) and (0)(6). thus, requests lo prodnce o particular dncnmien!
or documenta jn arder te confirm "Visa status·ortequest;s speci:fic documents te establlsh
. employment eligloility, might caUse an applicmt ta allego document abuse. Similarly,"an
applicant's perception that he ar she was rejected for employment on the.basis ofnationalorigin
.. m:ty promptthe Íñdividual to allege :nittional origin discrimination.

fer

.
·Consequently, jt is preferable to ask employm.ent applicants whether fuey are "1ega1ly
authorized to work in fue U.S." AF. a general rule, this is aJ1 that an employer must verlfy under
the law. Ápplicants asked to specify fueir·citiienship or immigration status in the cantext ofthe
omploymcnt application proccss may perceive that the employei' consid.ered the information in
.making the binñg decisíoD, and c6mmitted, prohibited discrimination.
In. your letter·you indicate. that sorne noniminigrant visa types are preferable te your
client because they do not require the employerte bear significant cost and the applicant can
start woIk: without de1ar. How~. mther than asking the applicant to choose frem a list of
specific visa statuses, the ernployer m.ay wish simply ta state: ''This employer will not spocsor
.

.

1 Uno.er fue !NA, on!.y U.S. citizens
nationals and certain docu"mented iJ;lllIli~ts, inoltldmg
rnany lawful permanent residents, B.S)'lees, and refu&ees, are protoctod ÍTom cl~zenship status

and

discrimination. 8 "t!.S.C. § .1324b(a){3).

2

1

I

.

,

_. ... ... _..- -

.,
I

applicants forthe fóllowUlg work.wij.S:
.... In addition, the et;nployer m.aj,
specify fue date by which !he applicant mus! be".eligibl. lo begin work. In fue 'alternativo, if fue
employer is willing in c~ instanceS'to sp.0DS0l' particular .individuaJ.s for emplojment:visas,
t1ie employerlllAY simply ask whether!he applicant will now or in fue futore reqllire sponsOrsbip
for áIl. employment visa. _
.

I

s_

:,

w. hopo fha! yoO will find !bis infonnalion helpfuL
~""""

Kmherine A. B
. DopuIY,SpeciaJ Conos.l

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U.S. Department oC Justice

Civil Rights Division

OJFtet QfSp«I4/ CoU/lSe/ jar Immigratian Re/ated
Unj,,;, Emplaymettt Pnu:tlcu • NYA
950 Pelltuylvania AW'lIue. NW
Wa.rJringIQlt. OC lOBO

JAN 15 1008
Via First C1ass Mail and Email Oanet.elizondo@eeoc.gQv)
Janet V. Elizondo
Deputy Director
U.S. Equal Employrnent Opportunity Cornmission Dallas District Office
207 S. Houston, 3rd Floor
Dalias, TX 75202
Dear Ms. Elizondo,
Thank you for youremail, dated September 24, 2007, to Jodi Dani, ofthe Civil Rights
Division. Your ernail was forwarded to this Office for response. In your email, you ¡nquire as to
the legality of a particular question on an ernployrnent application. We apologize for OUT delay
in responding.
Please be advised tbat tbis Office cannot give an advisory opinion on any particular case
of alleged discrirnination, or on any set of facts involving a particular individual or cornpany.
However, we can provide sorne general guidelines as to tbe legality ofvarious pre-ernployrnent
inquiries and procedures under tbe anti·discrirnination provision ofthe Irnmigration and
Nationality Act (!NA). 8 U.S.C. § 1324b.
The Office ofSpecial Counsel for Immigration Related Unfair Employrnent Practices
(OSe) was established in 1986 to enforce tbe anti·discrimination provision oftbe INA. Our
mission is to protect work-authorized individuals frorn employment discrimination based on
citizensbip or immigration status, national origin, over-documentation in tbe employment
eligibility verification (Form 1-9) process (document abuse), or retaliation for filing a cbarge or
asserting tbeir rigbts under the anti·discrimination provision ofthe INA. Individuals who
believe that they bave been discriminated against in violation ofthe INA may file a charge with
OSC.
Citizenship status discrimination occurs when individuals are not hired or are fired
because oftbeir real or perceived citizenship or irrunigration status or because oftheir type of
work authorization. Under the INA. U.S. citizens, refugees, asylees. recent pennanent residents,
and temporary residents are protected from citizenship status discriminabon.
8 U.S.C. § 1324b(a)(3).

Document abuse occurs when an employer requests more or ditTerent documents than
required for employment eligibility verification, and does so with the intent to discriminate on
the basis ofnational origin or citizenship status. 8 U.S.C. § 1324b(a)(6). By law, a new
employee may choose to show either one document from an Employment Eligibility Verification
(1-9) Form list of acceptable documents that demonstrate identity and eligibility to work (List A),
or a combination of one document from the 1-9's list of acceptable identity documents (List B)
paired with one document from a list of acceptable documents sbowing authorization to work in
Ihe United States (List C).
As described in your email, the employment application specifically asks: "Are you
prevented from lawfully becoming employed in tbis country because ofvisa or immigration
status? (Proof of citizenship will be required upon employment.)" The s13tement in parentbesis
in the second part ofthe question could imply that U.S. citizenship is required for employrnent.
However, an employer may only require U.S. citizenship in limited circumstances. The INA
pennits employcrs to discriminate on the basis of an individual ' s citizenship or irnmigration
status only if: (1) required by law, regulation, executive order; (2) required by federal , state or
local government contract; or (3) the Attomey General determines that it is essential in order for
an employer to do business with an agency or department ofthe federal, s13te or local
government. 8 U.S.C. § 1324b(a)(2)(C).
To avail itself ofthis exception, an employer must examine the applicable law,
regulation, executive order or contract to determine whether it requires the employer to restrict
employment for a specific position on the basis ofcitizenship or immigration status. A U.S.
citizcnship requirement for specific jobs does not justify a blanket U.S. citizens-only policy for
a11 jobs by that employer. For example, an employer is not justified in limiting a position to only
U.S. citizens ifa govemment contract does no1 prohibit the hiring or access ofnon-U.S. citizens,
but rather, sets a heigbtened level ofbackground review for non-U.s. citizen employees to have
access to restricted information. An employer should consider the following facts when
determining whether citizenship status discrimination is required by law, regulation, executive
order or govemment contract: the express language ofthe restriction at issue; the employee's
position - incJuding the type ofwork done, where it is done, and with whom it is done; and the
physicallayout of the site.
Moreover, a request for a specific document during the employment eligibility
verificarlon (Form 1-9) process, such as "proof of citizenship," may constitute document abuse.
lnstead, an employer should permit employees to produce whichever acceptable documents they
choose to verify their employment eligibility. Ifthe employer is trying to ascertain whetber an
individual is eligible to work in the United States without employment sponsorship, the intent
would be clearer ifthe question a5ked all applicants: "Are you currently legally authorized to
work in the United S13tes on a full-time basis?" Tbis will provide the employer with the
requisite inforination to discem whether the individual can comply with the INA's employment
eligibility verification (Form 1-9) procedure without suggesting to applicants that the employer
prefers a specific type of work autborization or immigration status. It is al50 a more precise way
of soliciting the information sought than the currerrt phraseology, which because it is phrased in

2

the negative, would allow someone who currently is not authorized to work, but potentially
could obtain employrnent sponsorship, to answer the question affirmatively.
We hope this information satisfactorily addresses your concems.

Sincerely.

rd-

Patrick Shen
Special Counsel

U.S. Department of Justice
Civil Rights Division

Offr« oj's,-:faf CoIl1/UJ ftw Immlgrtllion R~(l.fM
Unfoir Empfoymenl Praclicn - NYA
950 POl1uylvon{a AV<ttIu~. NW
Washingtan. OC 20JJO

KB:MH:JS:WG
CB: 261381

Leslie K. L. Thiele
Whiteman Osterman & Haona LLP
Attorneys at Law
One Commercial Plaza
Albany, NY 12260

Dear Ms~ Thiele:
This is in response to your inquiry dated November 22, 2006, to our Offic~ regarding
Certain questions that.your client propases to ask job applicants regarding their wor1c:
authorization. We apologize for the delay of our response.
Tbis Office cannot give you an advisory opinion on any particular cause of alleged
discriminadon, or on any set offacts involving a particular individual or entity. However, we
can provide sorne general guidelines regarding pre-employment inquiries under the anti
discrimination provision of!he Jmmigration and NationaJity Act (!NA), 8 U.S.C. § 1324b..
Your letter notes tbat your cHent wishes to pose two questions to applicants related to
their work authorizatioh. You ask whether it is legally permissible for an employrnent
application to contaio the following question:
Do you have Unrestricted U,,¡ted States W~rk Authorizanon?

Ifyou are a U.S. citizen, pennanent resident alien, temporary resident alien, applicant for
temporary resident status, refugee, or asylee, you bave Unrestricted U.s. Work Authorization. I(
you are on an:r, J, n, L, or any other non-immigranl visa, yuu do nut.
OYes, 1 have Unrestricted U.S. Work Authorization.

o No, 1 do not have Unrestricled U.S. Work Authorization.
Your client's second question is posed as a follow-up question to the first question. You
ask whether it is legal1y pennissible to present tbe following list of"visa status" options to an
applicant who has answere~ "no" to the frrst question:
0(1)

1 have started an application fo.r U.S, Pennanent Residency witb my employer, as a self

•

ofa

0(2)
O (3)
Ó (4)
D (5)

0(6)

petitioner, or as the irnmediate relative
U.S. citizen.
1 am currentIy on an F-I visa or utilizing ~y OPT (Optional Practical Training).
1 am currently on a J or L visa.
1 am currently on a TN visa.
1 am currently on an H-IB visa through an academic ínstitution or not-for-profit
employer.
1 am currently on a U.S. visa notmentioned aboye (ex: BI, B2, orvisa waiver) or ldo not
have any U.S. work: autborization at a11.

As you are probably aware, tbe INA prohibits citizenship status and natiaDa! origin
discrimination with respect to biring, termination. and recruiting or refemng for afee. See
8 U.S.C. § 1324b(a)(I)(Bj. The INAalso probibits employers from engaging in "document
ahuse" or over-documentatio'n in tbe employment e1igibility verification process"(§ 1324b(a)(6»
and retaliatory conduct (§ 1324b(a)(5)).

Citizensbip status discrimination occurs when protected individuals 1 are Dot hired
because of tbeir real or perceived irnmigratian or citizenship status, ar because of tbeir type of
work autborization, but tbe prohibition does Dot extend to discrimination tbat is otberwise
required in order to comply witb law, regulation, executive order, or Federal, State, or local
government contract. 8 U.S.C. § 1324b(aX2)(C).
.
While non-irnmigrant visa holders are not protected from citizenship status
discrimination, a11 work-autborized individuals, including many non-irnmigrant visa holders, are .
protected under fue INA's prohibitions against national origin discrimination and document
abuse. 8 U.s.C. §§ 1324b(a)(I)(A) and (aX6). Thus, requests to produce a particular document
or documents in arder to confum visa status OI requests for specific documents to establish
employment eligibility, might cause an applicant to al1ege document abuse. Similarly, an
applicant's perception that be or sbe was rejected for employment 00 tbe basis of natíonal erigin
may prompt tbe individual to allege national origin discrimination.
-Censequently, it is preferable lo ask employment applicants wbetber they are "legaJly
authorized to work in the U.S." As a general rule, this is all that an employer must verify under
tbe law. Applicants asked to specify their citizenship or immigration status in the context oftbe
employment application process may perceive tbat tbe employei" considered tbe information in
making the hiring decision and cornmitted prohibited discrimination.
In your Ietter you indicate that sorne nonirnrnigrant visa types are preferable to your
cUeot because they do not require the employer to bear significant cost and the applicant can
start work without delay. How~ver, rather tban asking the applicant to choose from a list of
specific visa statuses, tbe employer may wish simply to state: "Tbis employer wil1 not sponsor

I Under the !NA, only U.S. citizens and nationals and certain documented immigrants. includirig
many lawful permanent residents, asylees. and refugees, are protected from citizenship status
discrimination. 8 U.S,C. § 1324b(a)(3).

2

",

applicants for the following work visas:
." In addition. the employer may
specify the date by which the applicant must be eligible to begin work. In the alternative. ir the
employer is willing in certam instances to sponsor particular individuals for employrnent visas,
the employer may simply ask wbetber the applicant will now or in the future require sponsorship
fo! an employrnent visa.

We hope that you will find this informntion helpful.

In

Deputy Special Counsel


v.s. Department of Justice

V.S. Department of Education

Civil Rights Division

Office for Civil Rights

June 29, 2010
Dear College or University President:
We write to express concern on the part of the Department of Justice and the Department of
Education that colleges and universities are using electronic book readers that are not
accessible to students who are blind or have low vision and to seek your help in ensuring that
this emerging technology is used in classroom settings in a manner that is permissible under
federal law. A serious problem with some of these devices is that they lack an accessible text
to-speech function. Requiring use of an emerging technology in a classroom environment when
the technology is inaccessible to an entire population of individuals with disabilities
individuals with visual disabilities - is discrimination prohibited by the Americans with
Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504)
unless those individuals are provided accommodations or modifications that permit them to
receive all the educational benefits provided by the technology in an equally effective and
equally integrated manner.
The Departments of Justice and Education share responsibility for protecting the rights of
college and university students with disabilities. The Department of Justice is responsible for
enforcement and implementation of title III of the ADA, which covers private colleges and
universities, and the Departments of Justice and Education both have enforcement authority
under title II of the ADA, which covers public universities. In addition, the Department of
Education enforces Section 504 with respect to public and private colleges and universities that
receive federal financial assistance from the Department of Education. As discussed below, the
general requirements of Section 504 and the ADA reach equipment and technological devices
when they are used by public entities or places of public accommodation as part of their
programs, services, activities, goods, advantages, privileges, or accommodations.
Under title III, individuals with disabilities, including students with visual impairments, may not
be discriminated against in the full and equal enjoyment of all of the goods and services of
private colleges and universities; they must receive an equal opportunity to participate in and
benefit from these goods and services; and they must not be provided different or separate
goods or services unless doing so is necessary to ensure that access to the goods and services is
equally as effective as that provided to others.' Under title II, qualified individuals with
disabilities may not be excluded from participation in or denied the benefits of the services,
programs, or activities of, nor subjected to discrimination by, public universities and colleges.'
Both title" and Section 504 prohibit colleges and universities from affording individuals with
disabilities with an opportunity to participate in or benefit from college and university aids,

1 28 C.F.R. § 36.201(a); 28 C.F.R. § 36.202(a); and 28 C.F.R. § 36.202(c) (2009).
2 28 C.F.R. § 35.130(a) (2009).

[OCR-00054]

Page 2 - Dear Colleague Letter: Electronic Book Readers

benefits, and services that is unequal to the opportunity afforded others." Similarly, individuals
with disabilities must be provided with aids, benefits, or services that provide an equal
opportunity to achieve the same result or the same level of achievement as others." A college
or university may provide an individual with a disability, or a class of individuals with disabilities,
with a different or separate aid, benefit, or service only if doing so is necessary to ensure that
the aid, benefit, or service is as effective as that provided to others."
The Department of Justice recently entered into settlement agreements with colleges and
universities that used the Kindle DX, an inaccessible, electronic book reader, in the classroom as
part of a pilot study with Amazon.com, Inc. In summary, the universities agreed not to
purchase, require, or recommend use of the Kindle DX, or any other dedicated electronic book
reader, unless or until the device is fully accessible to individuals who are blind or have low
vision, or the universities provide reasonable accommodation or modification so that a student
can acquire the same information, engage in the same interactions, and enjoy the same
services as sighted students with substantially equivalent ease of use. The texts of these
agreements may be viewed on the Department of Justice's ADA Web site, www.ada.gov. (To
find these settlements on www.ada.gov, search for "Kindle.") Consistent with the relief
obtained by the Department of Justice in those matters, the Department of Education has also
resolved similar complaints against colleges and universities.
As officials of the agencies charged with enforcement and interpretation of the ADA and
Section 504, we ask that you take steps to ensure that your college or university refrains from
requiring the use of any electronic book reader, or other similar technology, in a teaching or
classroom environment as long as the device remains inaccessible to individuals who are blind
or have low vision. It is unacceptable for universities to use emerging technology without
insisting that this technology be accessible to all students.
Congress found when enacting the ADA that individuals with disabilities were uniquely
disadvantaged in American society in critical areas such as education." Providing individuals
with disabilities full and equal access to educational opportunities is as essential today as it was
when the ADA was passed. In a Proclamation for National Disability Employment Awareness
Month, President Obama underscored the need to "strengthen and expand the educational
opportunities for individuals with disabilities," noting that, "[i]f we are to build a world free
from unnecessary barriers ... we must ensure that every American receives an education that
prepares him or her for future success." http://www.whitehouse.gov/the-press
office/presidential-proclamation-national-disability-employment-awareness-month (September
30,2009) (emphasis added).

3 28 C.F.R. § 35.130(b)(1)(ii) and 34 C.F.R. § 104.4(b)(1)(ii) (2009).

4 Cf. 28 C.F.R.§ 35.130(b)(1)(iii) and 34 C.F.R. § 104.4(b)(1)(iii) (2009).
5 28 C.F.R. § 35.130(b)(1)(iv) and 34 C.F.R. § 104.4(b)(1)(iv) (2009).
6 42

u.s.c. § 12101(a) (1990).

Page 3 - Dear Colleague Letter: Electronic Book Readers

Technology is the hallmark of the future, and technological competency is essential to
preparing all students for future success. Emerging technologies are an educational resource
that enhances learning for everyone, and perhaps especially for students with disabilities.
Technological innovations have opened a virtual world of commerce, information, and
education to many individuals with disabilities for whom access to the physical world remains
challenging. Ensuring equal access to emerging technology in university and college classrooms
is a means to the goal of full integration and equal educational opportunity for this nation's
students with disabilities. With technological advances, procuring electronic book readers that
are accessible should be neither costly nor difficult.
We would like to work with you to ensure that America's technological advances are used for
the benefit of all students. The Department of Justice operates a toll-free, technical assistance
line to answer questions with regard to the requirements of federal laws protecting the rights
of individuals with disabilities. For technical assistance, please call (800) 514-0301 (voice) or
(800) 514-0383 (TTY). Specialists are available Monday through Friday from 9:30 AM until 5:30
PM (ET) except for Thursday, when the hours are 12:30 PM until 5:30 PM. These specialists
have been trained specifically to address questions regarding accessible electronic book
readers. Colleges, universities, and other stakeholders can also contact the Department of
Education's Office for Civil Rights for technical assistance by going to OCR's Web site at
http://wdcrobcolp01.ed.gov!CFAPPS!OCR!contactus.cfm.
We appreciate your consideration of this essential educational issue and look forward to
working with you to ensure that our nation's colleges and universities are fully accessible to
individuals with disabilities.
Sincerely,

Assistant Attorney General
Civil Rights Division
u.S. Department of Justice

Russlynn Ii
Assistant Secretary
for Civil Rights
u.s. Department of Education


U.S. Department of Justice
Civil Rights Division
Offtce ofSpecial Counselfor Immigration Related
Unfair Employment Practices - NYA
950 Pennsylvania Av~nue, NW
Washington, DC 20530

Via E-Mail dfazio@wstb.com
l'

:t

1 ...

Dan Fazio
Director of Employer Services
WashingtoIi Farro Bureau
975 Carpenter Road NE .
Lacey, WA 98516

JLN 222010

I

Dear Mr, Fazio:
Thank you for contacting the Offiée of Special Counsel for Irnmigration-Related Unfait
Employrnent Practices. This e-mail is in response to your letter, dated April16, 2010. In your
letter, you state that during a recent training of seasonal employers, an employer asked about its
employment eligibility verification obligations for seasonal workers who are laid offevery year
in November and who return to work the following February. The employer does not consider
the employees to have been terminated each November and does not reverify the employees'
employrnent eligibility each February, unless an employee's employrnent authorization
document has expired. Accordingly, you ask "how long of a layoffcan a business impose on an
employee before the employer would be reqmred to complete anew 1-9 or 1-9 Section 3?"
The Office of Special Counsel for 1mmigration-Related Unfair Employrnent Practices
("OSC") enforces the anti-discrimination provision ofthe Immigration and Nationality Act
("INA").! OSC's inission is to protect work-authorized individual s from employrnent
discrimination based on citizenship status, national origin, over documentatio:q. in the
employrnent eligibility verification (Form 1-9) process (document abuse), or retaliation for filing
.a charge or asserting their rights under the anti-discrimination provis~on.
This Office cannot give you an advisory opinion on aJiy set of facts involving a particular
. individual or company. However, we cap. provide some general guidelines regarding compliance
with the anti-discrimination provision ofthe INA.
Please note that the U.S. Department ofHomeland Security ("DHS"), U.S. Citizenship
and Irnmigration Services ("USC1S") administers the rules and regulations regarding
employment eligibility verification. In general, federal regulations require employers to
complete an 1-9 form for any individual the employer "hires or recruits or refers for a fee.,,2
However, "[a]n employer will not be deemed to have :Qired an individual for employrnent iffue .
18 u.s.e. § 1324b.
2 8 e.F.R. § 274a.2(b).

"0 ..

individual is continuing in his or her employment imd has a reasonable expectation of
employment at all times.,,3 Whether an employee is considered to have been rehired or
cóntinuing in employment depends upon the particular facts. The regulations enumerate .
exainples of when an employee is continuing in his or her emp"loyment; including when "an
individual is engaged in seasonal employment,,4 or when."[a]n individual is laid offfor lack of
work.,,5 An employer should consult its counsel for aSsistance in deterrnining whether an
employee had a reasonable expectation of employment at aH. times.
Federal regulations irripose different employment eligibility verification pbligations for
individual s previously employed by the employer than for new hires. 6 According to the USC1S
Handbook for Employers: Instructions for Completing Form 1-9 ("Handbook for Erilployers"):
"[w ]hen you rehire an employee, you must ensure that he or she is stiU authorized to work. You
may do this by completing a'new Form 1-9 or you may reverify or update the original form by
completing Section 3.,,7 The instructions on the Form 1-9 state: .
,
.,
Ifyou rehire an employee who has previously completed a Form, 1
9, you may reverify on the employee's original Form 1-9 (or on a
new Form 1-9 if Section 3 ofthe original has already been used) if:
1, You reblre the employeOe within three years of the initial date of
hire; and

20 ·The employee's previous grant ofemployment authorization .
. has expired, but he or she is now eligible to work ilnder a new
grant of employment authorization; or
3. The e~ployee is still eligible to work on the same basis as when
Form 1-9 was complete do 8 ,
. . ,
For more information on reverification and updating in this context, please see the
Handbook for Employers.

~,

Finally, please note that.to prevent discrimination'in violation ofthe anti-discrimination
provision ofthe INA during the employmeht eligibility verification process, an employer must
treat all employees similarly, regardless of their citize:nship or ir,nmigration status, or their
p.ational origino Accordingly~ any procedure an employer uses to determine when an employee's
employment authorization must be reverified should be applied consistently, regardless of an
employee's citizenship or immigration status, or national origino Additionally, an employer
reverifying an· employee' s employment authorization must not request a specific document or
38 C.F.R. § 274a.2(b)(1)(v'iH):
4 8 C.F.R. § 274a.2(b)(1)(viii)(A)(8).
s 8 C.F.R. § 274a.2(b)(1)(viii)(A)(3).
6 8.C.F.R. § 274a.2(c).
.
7 Handbook for Employers: Instructions for Completing the FonnI-9, (Employment Eligibi1ity Verification Forro),
Page 12, U.S. Department ofHomeland'Security, U.S. Citizenship and Immigration Services, M-274 (Rev. 7/31/09),
. available at http://wWw.uscis.govlfiles/nativedocuments/m-274,pdf. See also Fonn I-9 Instructions § 3 (Rev.
02/02/09). . ,
.
g Id. See also Forro 1-9 Instructiorts § 3 (Rev. 02/02/09).

combination of documents, but must allow the employee to present either a Li:st A document or a
'
. '
.
.
List C documento 9
We hope that this informa~on is of assistance to you.

atherine A. BaJ.d
Deputy Special Counsel

9 Id. at20..


u.s. Department of Justice
Civil Rights Division
Office ofSpecial Counselfor Immigration Related
Unfair Employment Practices - NYA
950 Pennsylvania Avenue, NW
Washington, DC 20530

Via Email:
Email: Melissa.K.DeGuia@BakerNet.com

June 10, 2010

Melissa K. De Guia, Esq.
Associate
Baker & McKenzie LLP
One Prudential Plaza, Suite 3000
130 East Randolph Drive
Chicago, lL 60601

Dear Ms. De Guia:
Thank you for your email, dated November 23, 2009. We apologize for the delay in our
response. In your correspondence, you state that the lrnmigration and Nationality Act (INA)
makes no reference as to whether the Form 1-9 should be maintained in an employee's file:
Furthermore, you ask whether it is advisable to do so, and ifthe Office of SpeciaI Counsel for
lmmigration Related Unfair Employment Practices (OSC) has ever issued a directive to separate
the Form 1-9 from the employee's file.
This office cannot give you an advisory opinion on any set of facts involving a particular
indIvidual or company. However, we can provide sorne general guidelines regarding compliance
with the anti-discrimination provision ofthe INA.
The Office of Special Counsel for lrnmigration Related Unfair Employment Practices
(OSC) in the Civil Rights Division oftheU.S. Department of Justice investigates and prosecutes
employers charged with national origin and citizenship status discrimination, as well as over
documentation in the employment eligibility verification process ("document abuse") and
retaliation under the antidiscrimination provision ofthe INA, 8 U.S.C. § 1324b. Congress
created OSC because of concem that making employers subject to civil and criminal sanctions
for knowingly hiring individual s unauthorized to work in the United States might result in
discrimination, either against those who look or sound "foreign" or those who are not U.S.
citizens. For more information about OSC, please visit our website at
http://www.justice.gov/crt/osc.
OSC has not issued guidance advising whether an employer should separate Forms 1-9
from employee files. However, the three agencies that are authorized to inspect 1-9 Forms - the
Department ofHomeland Security (DHS), OSC and the U.S. Department ofLabor - may provide
an employer with only three days' notice prior to inspecting Forms 1-9, and employers who
, refuse or delay an inspection will be in violation ofDHS retention requirements. See 8 C.F.R. §
274a.2. Thus, an employer may prefer to file an ~mployee's 1-9 form in a way that makes it easy
to retrieve.

For more information regarding the retention ofForms 1-9 you may call the U.S.
Citizenship and Immigration Services (USCIS) customer service hotline at 1-800-375-5283, or
you may visit the USCIS website at www.uscis.gov.


url: https://www.deadiversion.usdoj.gov/GDP/(DEA-DC-10) Questions and Answers for Pharmacies (EPCS).pdf

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EPCS Questions and Answers for Pharmacies

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Electronic Prescriptions for Controlled Substances (EPCS)

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Interim Final Rule with Request for Comment
Questions and Answers for Pharmacies
[as of 03/31/2010]

Cases Against Doctors

The questions and answers below are intended to summarize and provide general information for pharmacies regarding the
Drug Enforcement Administration (DEA) Interim Final Rule with Request for Comment “Electronic Prescriptions for
Controlled Substances” (75 FR 16236, March 31, 2010) [Docket No. DEA-218, RIN 1117-AA61]. The information in this
section is not intended to convey specific information about every aspect of the rule, nor is it a substitute for the regulations
themselves.

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Introduction
Q. What is DEA's rule “Electronic Prescriptions for Controlled Substances?”

Title 21 Code of Federal
Regulations
Title 21 USC Codified CSA

A. DEA's rule, “Electronic Prescriptions for Controlled Substances” revises DEA's regulations to provide practitioners with
the option of writing prescriptions for controlled substances electronically. The regulations will also permit pharmacies to
receive, dispense, and archive these electronic prescriptions. The rule was published in the Federal Register Wednesday,
March 31, 2010 and becomes effective on June 1, 2010.
Q. Is the use of electronic prescriptions for controlled substances mandatory?
A. No, the new regulations do not mandate that practitioners prescribe controlled substances using only electronic
prescriptions. Nor do they require pharmacies to accept electronic prescriptions for controlled substances for dispensing. Whether a practitioner or
pharmacy uses electronic prescriptions for controlled substances is voluntary from DEA's perspective. Prescribing practitioners are still able to write, and
manually sign, prescriptions for schedule II, III, IV, and V controlled substances and pharmacies are still able to dispense controlled substances based
on those written prescriptions. Oral prescriptions remain valid for schedule III, IV, and V controlled substances. Electronic prescriptions for controlled
substances are only permissible if the electronic prescription and the pharmacy application meet DEA's requirements. In addition, electronic
prescriptions for controlled substances may be subject to state laws and regulations. If state requirements are more stringent than DEA's regulations,
the state requirements would supersede any less stringent DEA provision.
Q. Did DEA consider public comment in the development of this rule?
A. DEA considered almost 200 separate comments received from the public to the “Electronic Prescriptions for Controlled Substances” Notice of
Proposed Rulemaking (73 FR 36722, June 27, 2008) in the development of this rule.
Q. Did DEA work with other Federal agencies in the development of this rule?
A. DEA worked closely with a number of components within the Department of Health and Human Services. DEA's discussions with the Office of the
National Coordinator for Health Information Technology (ONC), Centers for Medicare and Medicaid Services (CMS), and Agency for Healthcare Research
and Quality (AHRQ) were instrumental in the development of this rule. DEA also worked closely with the National Institute of Standards and Technology
and the General Services Administration.

General
Q. When can a pharmacy start processing electronic prescriptions for controlled substances?
A. A pharmacy will be able to process electronic controlled substance prescriptions only when the application the pharmacy is using to process
prescriptions complies with the requirements in the interim final rule.
Q. What must a pharmacy application be able to do to process electronic controlled substance prescriptions?

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EPCS Questions and Answers for Pharmacies

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A. The application requirements are detailed in 21 C.F.R. 1311.205. Generally, the application must be able to import, display, and store the required
contents of a controlled substance prescription accurately and consistently. The application must be able to digitally sign and archive the controlled
substance prescription or import and archive the record that the last intermediary digitally signed. The application must electronically accept and store
all of the information that DEA requires to be annotated to document the dispensing of a prescription. The application must allow the pharmacy to limit
access for the annotation, alteration (to the extent such alteration is permitted by DEA regulations), or deletion of controlled substance prescription
information to specific individuals or roles. The application must have an internal audit trail that documents whenever a prescription is received, altered,
annotated, or deleted. The application must conduct an internal audit that identifies any potential security problems daily and generate a report for
review by the pharmacy if a problem is identified. Many of these requirements are standard functionalities for pharmacy applications.
Q. How will a pharmacy be able to determine that an application complies with DEA's rule?
A. The application provider must either hire a qualified third party to audit the application or have the application reviewed and certified by an approved
certification body. The auditor or certification body will issue a report that states whether the application complies with DEA's requirements and whether
there are any limitations on its use for controlled substance prescriptions. (A limited set of prescriptions require information that may need revision of
the basic prescription standard before they can be reliably accommodated, such as hospital prescriptions issued to staff members with an identifying
suffix.) The application provider must give a copy of the report to pharmacies that use or are considering use of the pharmacy application to allow them
to determine whether the application is compliant with DEA's requirements.
Q. Until a pharmacy has received an audit/certification report from the pharmacy application provider indicating that the application meets DEA's
requirements, how can the pharmacy application be used to process controlled substance prescriptions?
A. A pharmacy cannot process electronic prescriptions for controlled substances until its pharmacy application provider obtains a third party audit or
certification review that determines that the application complies with DEA's requirements and the application provider gives the audit/certification
report to the pharmacy. The pharmacy may continue to use its pharmacy application to store and process information from paper or oral controlled
substances prescriptions it receives, but the paper records must be retained.
Q. What is a pharmacy's responsibility if the pharmacy's application cannot accommodate special DEA requirements, such as extension data for
institutional-based practitioners?
A. The audit report the pharmacy will receive from the pharmacy application provider will indicate if the application is capable of importing, displaying,
and storing such information accurately and consistently. If the audit or certification report indicates that the pharmacy application cannot accurately
and consistently import, store, and display this information, the pharmacy must not process electronic prescriptions for controlled substances that
require such information. For example, until the audit or certification report indicates that the pharmacy application can import, display, and store both
a hospital DEA number and the individual practitioner's extension number, the pharmacy must not accept electronic prescriptions that include only a
hospital DEA registration. The pharmacy may, however, use the application to process other controlled substance prescriptions if the audit or
certification report has found that the pharmacy application meets all other requirements.
Q. How does a pharmacy limit access to the pharmacy application?
A. The pharmacy application has to allow the pharmacy to set access controls. These controls may be set either by name or by role (e.g., pharmacist,
pharmacy technician). The controls define who has permission to annotate, alter (where such alteration is permitted by DEA regulations), or delete
controlled substance prescription information.

Transmission of Prescriptions to Pharmacies
Q. What is an intermediary?
A. An intermediary means any technology system that receives and transmits an electronic prescription between the practitioner and the pharmacy.
Q. If transmission of an electronic prescription fails, may the intermediary convert the electronic prescription to another form (e.g. facsimile) for
transmission?
A. No, an electronic prescription must be transmitted from the practitioner to the pharmacy in its electronic form. If an intermediary cannot transmit the
electronic data file of a controlled substance prescription to the pharmacy, the intermediary must notify the practitioner. Under such circumstances, if
the prescription is for a schedule III, IV, or V controlled substance, the practitioner can print the prescription, manually sign it, and fax the prescription
directly to the pharmacy. This prescription must indicate that it was originally transmitted to, and provide the name of, a specific pharmacy, the date
and time of transmission, and the fact that the electronic transmission failed.
Q. What are the restrictions regarding alteration of a prescription during transmission?
A. The (DEA-required) contents of a prescription must not be altered during transmission between the practitioner and pharmacy. However, this
requirement only applies to the content (not the electronic format used to transmit the prescription). This requirement applies to actions by
intermediaries. It does not apply to changes that occur after receipt at the pharmacy. Changes made by the pharmacy are governed by the same laws
and regulations that apply to paper prescriptions.
Q. What should a pharmacist do if he/she receives a paper or oral prescription that was originally transmitted electronically to the pharmacy?
A. The pharmacist must check the pharmacy records to ensure that the electronic version was not received and the prescription dispensed. If both
prescriptions were received, the pharmacist must mark one as void. The pharmacy is responsible for verifying that the prescription was not received
electronically and that no controlled substances were dispensed pursuant to the electronic prescription prior to filling the paper prescription. The paper
prescription must comply with all DEA requirements for any paper prescription, including a manual signature.
Q. What should a pharmacist do if he/she receives a paper or oral prescription that indicates it was originally transmitted electronically to another
pharmacy?
A. The pharmacist must check with the other pharmacy to determine whether the prescription was received and dispensed. If the pharmacy received
the original electronic prescription, but had not dispensed the prescription, that pharmacy must mark the electronic version as void or canceled. If the
pharmacy that received the original electronic prescription dispensed the prescription, the pharmacy with the paper version must not dispense the paper
prescription and must mark the prescription as void.

Records
Q. What are the DEA requirements regarding the storage of electronic prescription records?
A. Once a prescription is created electronically, all records of the prescription must be retained electronically. As is the case with paper prescription
records, electronic controlled substance prescription records must be kept for a minimum period of two years.
Q. Are electronic prescription records required to be backed-up, and if so, how often.

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EPCS Questions and Answers for Pharmacies

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A. Yes, pharmacy application service providers must back up files daily. Also, although it is not required, DEA recommends as a best practice that
pharmacies store their back-up copies at another location to prevent the loss of the records in the event of natural disasters, fires, or system failures.

Reporting Security Incidents
Q. Is a person who administers logical access controls required to report security incidents?
A. Yes, the application is required to run an internal audit for potential security incidents daily and generate a report of any such incidents. If the
application generates a report and, upon investigation, the person(s) designated to administer logical access controls for the pharmacy determine that
the issuance or records of controlled substance prescriptions has been compromised or could have been compromised, it must be reported to the
application provider and DEA within one business day. In general, the security incidents that should be reported are those that represent successful
attacks on the application or other incidents in which someone gains unauthorized access.

Audits and Certification of Applications
Q. Who can conduct an audit or certify an application?
A. Application providers must obtain a third-party audit or certification to certify that each electronic prescription and pharmacy application to be used
to sign, transmit, or process controlled substances prescriptions is in compliance with DEA regulations pertaining to electronic prescriptions for
controlled substances.
• The application may undergo a WebTrust, SysTrust, or SAS 70 audit conducted by a person qualified to conduct such an audit.
• The application may undergo an audit conducted by a Certified Information System Auditor who performs compliance audits as a regular
ongoing business activity.
• The application may have a certification organization whose certification has been approved by DEA verify and certify that the application meets
DEA's requirements.

Q. When must a third-party audit or certification be conducted?
A. The third-party audit or certification must be conducted before the electronic prescription application is used to sign or transmit electronic
prescriptions for controlled substances, or before the pharmacy application is used to process electronic prescriptions for controlled substances,
respectively. Thereafter, a third-party audit or certification must be conducted whenever a functionality related to controlled substance prescription
requirements is altered or every two years, whichever occurs first.
Q. To whom does the third-party audit/certification requirement apply?
A. The requirement for a third-party audit applies to the application provider, not to the individual practitioner, institutional practitioner, or pharmacy
that uses the application. Unless an individual practitioner, institutional practitioner, or pharmacy has developed its own application, the practitioner or
pharmacy is not subject to the requirement.

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V.S. Department of Justice
Civil Rights Division

Special Counselfor Immigration Related
Unfair Employment Practices - NYA
950 Pennsylvania AveilUe, NW
Washington, DC 20530

VIA E-MAIL(donald@jsoslaw.com)
Donald K. Sheppard, Esq.
Partner, Attomey at Law
Jacobs Schlesinger Ople & Sheppard LLP
121 Broadway
Suite 573
San Diego, CA 92101

March 29, 2010
\

Dear Mr. Sheppard:
This is in response to your e-mail ofFebruary 26,2010. You asked whether a document
that can be found at: http://www.cac.mil/CardInfoGeneva1.html is an acceptable List B
document for 1-9 purposes.
As you know, the Office of Special Counsel for Immigration~Related Unfair Employment
Practices (OSC) investigates and resolves charges of national origin and citizenship status
discrimination, as well as over-documentation in the employment eligibility verification process
("document abuse") and retaliation under the anti-discrimination provision of the Immigration
and Nationality Act (INA). OSC cannot provide an advisory opinion on any specific case or set
offacts. However, we can provide general information on the INA's anti-discrimination
pro vis ion and the Form 1-9 process.
Document abuse or over-documentation in the employment eligibility verification process
is prohibited under the INA. 8 U.S.C. § 1324b(a)(6). Document abuse discrimination occurs
when an employer requests more or different documents or rejects valid documents for
employment eligibility verification with an intent to discriminate based on an individual' s
national origin or citizenship status.
The INA requires employers to examine specific documents in order to verify each new
employee's identity and work eligibility. An employer is obligated to examine either a Form 1-9
List A document (identity and work authorization), or a List B {identity) and a List C (work
authorization) document for each new employee. 8 U.S.C. § 1324a(b)(1). The documents that
an employer may accept for this purpose are listed on the back ofthe Form 1-9 itself.

The Department ofHomeland Security's Office ofU.S. Citizenship and Immigration
Services (USCIS) oversees the Form 1-9 process. USCIS' website (www.uscis.gov) has
information regarding its enforcement of the employment eligibility verification requirements of
8 U.S.C. § 1324a. In addition, you may contact the Verification Division ofUSCIS at (888) 464
4218 for further information on rules pertaining to the 1-9 Form.
For further information on acceptable Form 1-9 documents, we suggest that you contact
USCIS. We hope this information is of assistance to you.
Sincerely,

in
Katherine A. Ba
Deputy Special Counsel


u.s. Department of Justice
Civil Rights Division

Off/ce ojSpecial Counseljor Immigration Related
Unjair Employment Practices - NYA
950 Pennsylvania Avenue, NW
Washington, DC 20530

Victoria Donoghue
N achman & Associates
V1SASERVE PLAZA
487 Goffle Road
Ridgewood, NJ 07450
Dear Ms. Donoghue:
This letter responds to your e-mail received by the Office of Special Counsel for
Immigration Related Unfair Employrnent Practices (OSC) on February 1, 2010. Your emaíl .
poses questions about when the Employment Eligibility Verification Form 1-9 (Form 1-9) can be
completed. Specifically you ask whether sorne components of a large employer can complete the
Form 1-9 on the first day ofwork while others complete the Form 1-9 before the first day ofwork.
As you may know, OSC enforces the anti-discrimination provision ofthe 1mmigration
and Nationality Act ("INA"), as amended, 8 U.S.C. § 1324b. The anti-discrimination provision
prohibits four types of unlawful conduct: (1) citizenship or immigration status discrimination; (2)
national origin discrimination; (3) unfair documentary practices during the employrnent
eligibility verification (Form 1-9) process ("documentabuse"); and (4) retaliation for filing a
charge or asserting rights under the anti-discrimination provision.
This office cannot give you an advisory opinion on any set of facts involving a particular
individual o;r company. However, we can provide sorne general guidelines regarding
compliance with the anti-discrimination provision ofthe INA.
The Form 1-9 is published by the U.S. Department ofHomeland Security (DHS) .
. According to DHS guidance, an employer may request 1-9 documents prior to the first day of
work, so long as an offer of employment has already been unambiguously extended and
accepted.! However, an employer that adopts this practice - whether across the board or just in

! "The law requires that you complete the Forro 1-9 only when the person actually begins working. However, you
may complete the forro earlier, as long as the person has been offered and has accepted the j ob. You may not use the

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sorne departments -- should take affirmative steps to ensure that employees are not treated
differently on the basis of citizenship status or national origino In addition,if the new employee
has forgotten, or does not have, a single document or combination of documents to establish
authorization to work and identity, the employer has, in most cases, up to three business days to
complete the Form 1-9.2
We hope this information is of assistance to you. Please feel free to contact us through
our to11 free number at 1-800-255-7688 ifyou have any further questions.
Sincerely,

1-9 process to screen job applicants." HANDBOOK FOR EMPLOYERS: INSTRUCTIONS FOR COMPLETING
THE FORM 1-9 (Employment EligibilityVerification Forro), Page 29, U.S. Department ofHomeland Security, U.S.
Citizenship and Immigration Services, M-274 (Rev. 7/31/09), available at bttp://www.uscis.gov/files/fonl1/m-274.pdf
2

Id. at 30.