Employers Can’t Discriminate Based on Your Immigration Status

It’s widely known that federal civil rights laws outlaw employment discrimination on certain bases, such as race, gender and religion. But did you know that it’s also against the law for most employers to discriminate against people on the basis of their legal immigration status?

A section of the Immigration and Naturalization Act (INA) prohibits employers from engaging in discrimination in advertising or recruiting for a job, or in hiring or firing an employee, on the basis of citizenship or immigration status.

The prohibition applies to employers with at least four employees. The law protects any employee or job applicant who is:

• a U.S. citizen
• an alien lawfully admitted for permanent residence in the United States
• an alien lawfully admitted for temporary residence who is authorized to work
• an alien granted refugee status or political asylum

An exception can be made in the rare situation where a law, regulation, government contract or executive order requires the employer to limit a specific position to U.S. citizens.

The U.S. Department of Justice is responsible for enforcing the anti-discrimination provision of the INA. Recently, the DOJ reached a Immigration and Naturalization Act (INA) against a New Jersey labor staffing firm that expressly advertised for job applicants who needed temporary work visa sponsorships, thereby discouraging U.S. citizens, U.S. permanent residents and work-authorized foreign nationals from applying. The settlement required the company, Secureapp Technologies LLC, to pay $26,000 in fines, change its recruitment practices, retrain its recruiters and conform to DOJ monitoring and reporting requirements.

The INA also prohibits employers from raising documentary hurdles to discriminate based on a job applicant’s immigration status. Employers must verify a prospective employee’s eligibility to work in the United States by preparing a Form I-9, based on documentation provided by the prospective employee, and may further verify work eligibility by using the U.S. Department of Homeland Security’s online E-Verify system. However, employers are prohibited from demanding any particular types of documents as part of the process. As long as the documents offered by the prospective employee are currently valid, look genuine and provide the necessary information, they are sufficient. Employers also can’t refuse to hire the worker merely because E-Verify hasn’t confirmed eligibility. They can only reject a worker who is confirmed to be ineligible.

Finally, employers are prohibited from retaliating against protected employees or job applicants because they:

• Filed a charge of discrimination
• Participated in an investigation or litigation regarding discrimination
• Otherwise asserted a right under an anti-discrimination law on behalf of themselves or another person

If you believe you are a victim of job discrimination based on your immigration status, you should consult an experienced and knowledgeable employment law attorney.

Kevin T. Kutyla, Esq. in Succasunna helps New Jersey employees fight all forms of employment discrimination, harassment and retaliation. For a confidential initial consultation, call me at 862-354-8931 or contact me online.