It is illegal to discriminate on the basis of citizenship or national origin in recruiting, hiring, onboarding, or employing workers. Title VII of the Civil Rights Act of 1964 (“Title VII”) as well as the Immigration Reform and Control Act (“IRCA”) impose penalties on employers engaging in discriminatory employment practices. While prohibitions against citizenship and national origin discrimination may seem straightforward, there are many everyday scenarios that can subject an employer to liability. In particular, when creating company policies with regard to the employment of foreign workers or dealing with job applications from foreign workers, employers should be wary as to what questions they ask and what types of documentation they request.
Employers are generally not allowed to treat individuals differently in hiring, firing, or recruitment based on citizenship status or make employment decisions based on actual or apparent national origin. Employers may only take an individual’s citizenship into account if citizenship is an essential requirement for the job (i.e. required by law, regulation, executive order, or government contract). National origin discrimination includes, but is not limited to, discrimination due to place of birth, country of origin, ancestry, native language, and may be based on a perception that the individual looks or sounds “foreign,” or any other national origin indicator.
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. It is important, however, to keep in mind that all work-authorized individuals are protected from national origin discrimination.
The Department of Justice (DOJ) has jurisdiction over citizenship discrimination claims as well as national origin claims involving entities with between four and 14 employees. The Equal Employment Opportunity Commission (EEOC) has jurisdiction over national origin claims involving employers with 15 or more employees. DOJ provides useful guidance in the form of technical assistance letters, and EEOC has published its enforcement guidance, both valuable resources in understanding the careful nuances of potentially discriminatory behavior.
Below are some typical questions that can arise in the recruitment and hiring process, which raise questions regarding citizenship and national origin discrimination.
Q: Must ABC Company (ABC) consider foreign workers who apply for positions with their company?
A: ABC is not required to sponsor eligible foreign nationals for employment within their organization, but ABC may not make assumptions about a candidate’s ability to provide appropriate work authorizing documents. In other words, ABC should not treat differently an otherwise qualified individual based on a suspicion that the individual may not be work authorized.
The DOJ cautions against making assumptions based on an individual’s employment authorization status, even if that assumption is based on the status documents the employee presents for Form I-9 verification. Where an employee presents a work authorization document in one category, he or she could be in the process of transitioning into a different immigration status that would extend or continue the individual’s ability to work in the U.S.
Q: What if ABC knows that a candidate for hire will require sponsorship in the future?
A: In limited circumstances, if ABC knows that it will need to sponsor a candidate for work authorization in the future (such as a student working pursuant to Optional Practical Training), it may consider this factor in deciding whether to extend an offer of employment.
It is important, however, that the employer not make assumptions as to the individual’s future ability to work, because immigration status can be fluid and changing. As noted above, there are many different fact patterns that could present themselves which would allow the person to acquire permanent residence without employer sponsorship. In addition, it is possible that the individual could be in the process of changing status into another category not requiring employer sponsorship as well. For example, a foreign national could have a pending application for asylum, or perhaps he or she is applying for U visa classification as a victim of a crime.
Q: May ABC include questions regarding immigration status in its advertising, application for employment, or pre-employment screening processes?
A: Employers who wish to notify job seekers that they do not sponsor work authorization are encouraged by DOJ to use the following language: Applicants must be currently authorized to work in the United States on a full-time basis.
In addition, DOJ has indicated that certain (carefully worded) pre-employment screening questions are unlikely to violate anti-discrimination rules. DOJ recommends that pre-screening questions avoid any references to immigration status and prefers the following language: Will you now or in the future require sponsorship for employment visa status (e.g. H-1B visa status)? It is important that this question be asked uniformly as part of the normal vetting process and not be directed toward particular individuals such as those who might have an unusual name or accent.
Q: May ABC request documents verifying employment eligibility prior to extending an offer of employment?
ABC may not request documents to verify employment eligibility prior to extending an offer of employment. It can, however, try to pre-screen for those requiring employer sponsorship to work lawfully in the U.S. Employment could also be conditioned for all prospective employees on providing appropriate documentation of work authorization and identity at as required for Form I-9 compliance.
Please refer to timeline for completion of Section One for the Form I-9 below:
You may have your employees complete Form I-9:
- On their first day of employment (the actual commencement of employment of an employee for wages or other remuneration referred to as date of hire in the Department of Homeland Security regulations); or
- Before their first day of hire, if you have offered the individual a job and if they have accepted the offer.
First Day of Work
Employee completes Section 1
Form I-9 Due
Employer completes Section 2
Employees can have help completing Section 1, including using a translator.
Please note that the term, “hire,” may be the date the individual will first perform work for pay or other compensation or after offer and acceptance of employment.
Q: ABC is considering sponsoring an individual for an H-1B transfer. Upon a review of eligibility, ABC learns that the individual has only a few months of H-1B eligibility remaining. May ABC rescind its offer of employment?
A: DOJ has indicated that employers are not required to sponsor foreign employees for work authorization. ABC must be cautious as to any requests for documentation to assess eligibility for employment as well as in making assumptions whether the candidate would be able to provide continued proof of work authorization beyond a particular date. ABC may certainly take its business needs into consideration when determining whether or not to sponsor an individual for employment. It is important to remember that policies should be consistent though for consideration.
Some key considerations to remember:
- Requesting details regarding eligibility for work from some but not all – Employers should not solicit information regarding work authorization from only those applicants who they suspect are of a different nationality or citizenship. Employers should establish uniform policies applied toward all potential or current employees.
- Prematurely requesting documents – Employers should not request documents of employment eligibility before making an offer and receiving an acceptance of employment from the prospective employee. That is why the use of pre-hire screening questions is important if the company does not wish to sponsor foreign nationals for employment.
- Requesting more or different documents – Employers should not ask for a particular type of document, such as a green card, social security card, etc., from employees. Please refer to DOJ press releases related to discriminatory practices in requesting specific documents from potential workers. For example, one Texas company recently paid in December of 2018, a civil penalty of $857,868 regarding its practice of limiting the types of documents different groups of workers could use to establish their work authorization based on the workers’ citizenship status.
About the Author: Heather Frayre is Of Counsel in Dickinson Wright’s El Paso office where she assists clients in navigating immigration matters tied to the recruitment, hire, transfer, and retention of foreign workers. She counsels corporate and individual clients on a full range of immigration matters including non-immigrant visas, permanent residency, and citizenship as well as issues tied to worksite compliance. She can be reached at 915-541-9370 or firstname.lastname@example.org.
 See 8 U.S.C. § 1324b(a)(3).