OSC Reiterates That Employers May Not Institute a Hiring Preference for U.S. Citizens Unless Required To Do So

In response to a query, Alberto Ruisanchez, Acting Deputy Special Counsel of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), reiterated that employers may not institute a hiring preference for U.S. citizens unless required to do so to comply with a law, regulation, executive order, or government contract. Individuals protected from citizenship status discrimination include U.S. citizens, lawful permanent residents, refugees, and asylees.

Mr. Ruisanchez said the OSC encourages employers considering a restriction on hiring based on citizenship status to ensure that it is properly restricting the position. Not to do so is to risk the imposition of sanctions, penalty fines, reporting requirements, and back pay.

Mr. Ruisanchez noted that the OSC cannot give an advisory opinion based on any particular set of facts. The query was from Gretta Rowold, Executive Director of Secure Research Operations for the University of Oklahoma’s Office of Legal Counsel. She told the OSC that the university negotiates sponsored research agreements with non-university parties and periodically is asked to restrict participants to U.S. citizens only, and that the organizations sponsoring the research in some cases are unwilling or unable to provide justification for the requirement other than stating that the organization does sensitive work, or has a U.S. government customer who wouldn’t like it if non-U.S. citizens were involved in their projects. She asked the OSC what exposure the university might have under the law, and what type of justification or documentation is appropriate to protect the university against liability.

The OSC’s response letter, sent on November 20, 2013, is available as PDF.