Steps to Prevent Immigration-Related Discrimination in Hiring
When Congress created the I-9 employment eligibility verification requirements in 1986, there was concern that employer scrutiny would lead to discrimination against people who looked or sounded foreign-born. Thus, as a counterweight to the potential problems associated with employers checking new employees’ documents, Congress wrote laws to protect workers from discrimination during the I-9 process based on national origin and citizenship status. These laws are designed to punish employers for what are described in the Immigration and Nationality Act as “unfair immigration-related employment practices.” The Office of Special Counsel (OSC) of the U.S. Department of Justice in Washington, D.C., is the agency that enforces these laws.
With the U.S. Immigration and Customs Enforcement (ICE) scrutinizing employers on I-9 and immigration compliance at an unprecedented rate, employers need to be careful that they do not impose a higher or different set of compliance standards on immigrants or workers they perceive to be foreign-born. These legal protections and OSC’s jurisdiction do not extend to protecting illegal aliens or those who use false documents. However, these laws provide citizens, lawful permanent residents, temporary permanent residents, refugees and asylees with legal protections that can be investigated and prosecuted by OSC.
If an employer is found to have committed an unfair immigration-related employment practice, OSC has the authority to take the matter before an administrative law judge and seek such remedies as reinstatement, back pay, and corrective measures to ensure the employer’s compliance with federal law. OSC has the authority both to request and subpoena documents pursuant to charges filed by workers alleging a violation and to initiate investigations on its own accord.
An unfair immigration-related employment practice may occur in a variety of scenarios:
- The employer has a policy of requiring employees to be U.S. citizens, or showing a preference for citizens, when citizenship is not required by law, executive order or government contract.
- The employer imposes a different or higher set of I-9 employment eligibility verification procedures on non-citizens as compared to U.S. citizens.
- An employer obligates all non-citizens to present a Permanent Resident Card or other specific document, or otherwise refuses to permit immigrants to choose which documents they want to present to complete the Form I-9, Employment Eligibility Verification.
- An employer requires more documents from people who look or sound foreign than it requires from new employees who appear to be citizens.
- An employer “screens” job applicants by requesting employment authorization documents in advance of job offers.
- An employer refuses to hire an applicant because he has an immigration document (showing, for example, that he is a lawful permanent resident, asylee or refugee, all of which are classifications of non-citizens who have a full-fledged right to work and live permanently in the United States).
- An employer rejects an applicant because his valid work authorization document has an expiration date.
- An employer refuses to employ or continue the employment of a foreign national who has authorization to work pursuant to Temporary Protected Status (TPS) as defined by federal law and corresponding U.S. Citizenship and Immigration Services (USCIS) regulations.
- An employer has a policy of requiring and reviewing immigration status documents even though the employee has presented other acceptable documents to complete the I-9.
- An employer threatens, coerces or otherwise retaliates against an employee who has filed a charge with the OSC or is otherwise participating in an OSC investigation.