The Immigration and Nationality Act (INA) and the Immigrant and Employee Rights Section (IER) of the U.S. Department of Justice’s Civil Rights Division which enforces a part of the INA, prohibit discrimination based on citizenship status and national origin with respect to hiring, recruiting, termination, or referring for a fee. 8 U.S.C. § 1324b(a)(1)(B).
Accordingly, employers must treat all potential hires (U.S. citizens, foreign nationals, lawful permanent residents, asylees, and refugees) in the same manner and consistently in recruitment or hiring, without regard to their actual or perceived citizenship status or national origin. The only limited exception is when a law, regulation, executive order, or government contract requires a company to consider candidates with certain citizenship statuses (i.e., a federal contractor/employer who is restricted to hiring only U.S. citizens for positions that may deal with highly sensitive, national security information).
In developing and adopting hiring/recruitment policies and practices that avoid discriminating based on citizenship status or national origin, here are some guidelines:
Do not assume that only U.S. citizens are authorized to work because many non-U.S. citizens have employment authorization in the United States (i.e., green cards, employment authorization cards (EADs), temporary work visas, etc.).
Avoid creating unnecessary delays to starting work for work-authorized individuals who may not yet have received a Social Security number (SSN). For example, some newly-arrived lawful permanent residents and refugees may still be waiting for their SSN. Both the Social Security Administration (SSA) and E-Verify give instructions on how such employees can start working while waiting for their SSN.
Unless legally required (as noted above), avoid language in job postings that limits eligibility based on citizenship status or national origin, such as:
"Only U.S. Citizens"
"Only U.S. Citizens or Green Card Holders"
"H-1Bs and OPT Preferred"
"Must have a U.S. Passport"
"Must have a Green Card"
"Must Present U.S. Birth Certificate"
“Native English Speakers only”
Do not specify which documents are acceptable for I-9 purposes. Employers are not allowed to request more or different documents than are required by law to verify employment eligibility, reject reasonably genuine-looking documents, or specify certain documents over others based on citizenship status or national origin. The Form I-9 Instructions explain that the worker has the right to choose which valid documentation the worker wants to show. For example, many individuals including non-U.S. citizens have a driver’s license and unrestricted Social Security card and may choose to present those documents. Employers may not ask for or require such individuals to present other documents to verify their work authorization.
Do not fire, delay employment of, or take any adverse action against employees who receive a “Tentative Nonconfirmation” (TNC) after submitting the Form I-9 through E-Verify. The employer must notify the employee of the TNC, and if the employee decides to contest the TNC, employers cannot take any adverse action against the employee until the TNC becomes a “Final Nonconfirmation.” If the employee decides not to take any action in response to the TNC, the employer may terminate employment in that case as well.
Do not assume that the employee does not have work authorization because you receive an SSN no-match letter. SSN no-matches can happen for a number of reasons, including an unreported name change, typographical errors, or inaccurate employer records. As the SSA advises in its Employer Correction Request letter, employers should not use the mismatch by itself as a reason for taking any adverse employment action against any worker since an SSN no-match letter does not provide information about immigration status. In fact, employers cannot reverify a worker’s immigration status based solely on having received an SSN no-match letter. Doing so may violate the anti-discrimination provision of the INA.
So what actions are allowed during the hiring process? Employers can ask certain questions during the interview or on employment application forms. For instance, employers can ask whether an applicant is legally authorized to work in the U.S. If the applicant lacks employment authorization, the employer can also ask whether the applicant now or in the future requires sponsorship for an employment visa such as an H-1B. Pre-employment questions should focus on employment authorization rather than specific status (i.e., citizenship or lawful permanent residency) since such inquiry may lead to discrimination claim on the basis of citizenship status or national origin.