It’s illegal for an employer to discriminate based on citizenship in any part of the employment process, whether in recruiting, hiring, disciplining, or firing. Yet, it's also illegal to employ an unauthorized worker.
At first glance, this seems to place employers in a tough position. Fortunately, federal law, the Equal Employment Opportunity Commission (EEOC), and U.S. Citizenship and Immigration Services (USCIS) regulate and provide guidance on what an employer should and should not do during the hiring process.
Citizenship Discrimination and Federal Law
At the outset, it’s important to differentiate between discrimination based on national origin, which is covered primarily by Title VII of the Civil Rights Act of 1964, and discrimination based on citizenship.
An employer would be discriminating based on national origin if individuals from a potential pool of job applicants were treated differently or rejected because they hail from a certain region of the world or share cultural, physical, or linguistic characteristics with a specific ethnic group.
Discrimination based on citizenship, on the other hand, occurs when individuals are treated differently because of their citizenship or immigration status. In the hiring process, this typically occurs when:
- An unlawful method is used to verify a job applicant’s eligibility to work in the United States. For example, the employer demands additional or different documents than are required by law.
- The employer rejects a job applicant based on citizenship with no basis to do so under federal law. An employer can consider citizenship only when a federal law makes U.S. citizenship an essential job requirement.
The Immigration Reform and Control Act of 1986 (IRCA) is the federal law that makes it illegal to treat job candidates differently based on citizenship (8 U.S.C. §1324a).
It covers the verification process that must be followed in determining whether someone is legally authorized to work and what records must be kept. Like Title VII, it also makes it illegal to discriminate based on national origin.
Who is Protected by IRCA?
IRCA applies to employers with four or more employees and protects U.S. citizens and nationals against discrimination. It also applies to aliens who are:
- lawfully authorized for permanent and temporary residence
- admitted as refugees, or
- granted asylum.
IRCA does not cover independent contractors and domestic services workers who sporadically work in private homes. For example, a gardener or babysitter who works inconsistently with no set schedule is not covered. These types of workers, however, would be covered if they performed services on a regular or consistent basis (say, once a week).
What Federal Law Requires
Employers must follow federal law, which requires them to provide job candidates with an I-9 Form to complete. The I-9 Form is available on the US Citizenship and Immigrations Services website and is the tool employers must use to verify that a job candidate is authorized to work in the U.S.
The I-9 Form regulates what types of documents an employer can request and how many the job candidate is required to supply. There are three lists of acceptable, unexpired documents that an employee can choose from:
- List A – Documents that establish both identity and employment authorization.
- List B – Documents that establish identity.
- List C – Documents that establish employment authorization.
Employees are permitted to present one document from List A or a combination of one document from List B and one from List C. List A includes such things as a U.S. Passport and a Form I-551 (Green Card). Documents that appear on list B and C include a driver’s license, school ID with a photo, Social Security card, and an original or certified copy of a birth certificate issued within the United States.
If the worker is hired, the employer has three days from the date of hire to examine the submitted documents. If the employee is hired to work for less than three days, the documents must be examined by the end of the first day. If the original authorization is temporary, eligibility must be re-verified on or before the work authorization’s expiration date.
What an Employer Should Never Do
Significantly, the I-9 Form clearly states what an employer should not do in its antidiscrimination notice, located at the top of the form’s first page:
It is illegal to discriminate against work-authorized individuals. Employers cannot specify which document(s) an employee may present to establish employment authorization and identity. The refusal to hire or continue to employ an individual because the documentation has a future expiration date may also constitute illegal discrimination.
The I-9 Form spells out which and how many documents the job candidate must supply. Consider that List A includes a U.S. Passport and a Green Card. An employee is only required to supply one or the other. It’s illegal for an employer to demand both or reject the worker for failing to provide both.
E-Verify
E-Verify is an online system that helps businesses confirm whether their new hires are legally allowed to work in the U.S.
It compares the information from an employee’s Form I-9 against government records from the Social Security Administration and the Department of Homeland Security. If the information matches, the employee is confirmed to work. If not, a Tentative Nonconfirmation (TNC) is issued, giving the employee a chance to resolve it.
While Form I-9 is required for all employers, E-Verify is usually voluntary unless mandated by state law or federal contracts. It’s free to use and gives results quickly, usually within seconds.
Recognized Antidiscrimination Exceptions
In general, IRCA does not protect someone who:
- Fails to apply for naturalization within six months of being eligible to do so.
- Timely applies for naturalization but is not naturalized within two years of the application date. In this case, however, an alien who is actively pursuing naturalization can be protected.
An employer may give preference to a US citizen if the citizen and authorized alien are equally qualified for the job.
Seeking Legal Help
Citizenship and immigration issues can be complicated and nuanced, and both criminal and civil penalties can be imposed on those who violate IRCA. Contacting an immigration or employment attorney is a good idea if you are uncertain how to ensure you're employing authorized workers.