On April 30, 2014, the United States Office of Special Counsel (OSC) issued a Technical Assistance Letter (TAL) discussing whether an employer may decline to hire an F-1 student visa holder on Optional Practical Training (OPT) because of limited time left in F-1 status.
In the TAL, the OSC pointed out that the categories of individuals protected from citizenship status discrimination are limited to 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. Accordingly, F-1 visa holders are not protected from citizenship status discrimination. Therefore, the OSC determined that an employer who asks whether an applicant would require sponsorship now or in the future is unlikely to implicate the anti-discrimination provision’s prohibition against citizenship status discrimination. Similarly, if communicating the employer’s unwillingness to sponsor an unsuccessful applicant was the basis for the non-hire decision, then it is not likely to lead to a determination by OSC that an employer has committed unlawful citizenship discrimination.
The OSC also noted that all work-authorized individuals are protected from national origin discrimination under the anti-discrimination provision. Therefore, an individual who believes that he or she was not hired based on national origin – for example, country of origin, accent or appearance – may allege discrimination on this basis.
Finally, the OSC recommended clearly documenting selection and hiring decisions, including the basis for those, even though there are no tracking obligations under the anti-discrimination provision.