Immigration Status Discrimination
Discrimination occurs when an employer treats an individual differently based on their citizenship or immigration status. This is illegal under the anti-discrimination provision of the Immigration and Nationality Act (INA) regardless of whether an individual is a U.S. citizen or not, a permanent resident, an asylee, or a refugee. However, some employer actions are not considered illegal discrimination – such as firing undocumented workers. After reviewing the information on this page, you may be interested in also reading about national origin discrimination.
Discrimination based on immigration or citizenship status occurs when an individual is treated differently in their employment because of their citizenship or immigration status. It is different from national origin discrimination because the characteristic the discrimination is based on is the individual’s immigration status, rather than whether an individual or his or her ancestors came from another country. Both types of discrimination are against the law.
The only exception to this rule applies to permanent residents who do not apply for naturalization within six months of eligibility. These individuals are not protected from citizenship status discrimination. Similarly, some actions by employers that might otherwise be considered illegal discrimination, may be permissible if they are required by another law, executive order, regulation, or government contract. For example, a government contractor may request additional paperwork for a security clearance, if the government contract requires it.
If you have been rejected for employment, fired, or otherwise harmed in your employment because of your citizenship, immigration status or type of work authorization, you may have suffered illegal immigration status or citizenship status discrimination.
The Immigration Reform and Control Act (IRCA) is a federal law that protects individuals from employment discrimination based on immigration or citizenship status. This anti-discrimination law makes it illegal to discriminate on the basis of national origin or citizenship status in hiring, firing (including layoffs), recruitment, or referral for a fee. It makes it illegal to require more or different documents than are legally acceptable for employment verification purpose. It also makes it illegal to refuse to honor the documents the employee offers if they are legally acceptable and appear to be genuine. Finally, it prohibits intimidation, coercion, threats, or retaliation against individuals who file charges or otherwise cooperate with an investigation, proceeding, or IRCA hearing.
Some examples of potentially unlawful immigration or citizenship status discrimination include:
- You didn’t get hired because the employer hires only U.S. citizens to do certain jobs.
- You are a temporary resident with work authorization, but a company denies you employment because it doesn’t want to deal with the “hassle” of filling out the appropriate paperwork.
- Muslim, Asian and Latino employees are asked for copies of their work authorization papers, while other employees who are Caucasian or African-American are not asked to provide similar authorization papers.
- You show your employer your driver’s license and social security card, but your supervisor insists that you also show her a copy of your green card. When you point out that this is not required by law to fill out the I-9 form, you are told the company requires it.
- You sign up with a temporary agency, and learn that a certain employer has work for someone with your skills and experience. The agency refuses to refer you to work for this employer because the employer wants to hire only U.S. citizens.
If any of these things have happened to you on the job, you may have suffered immigration or citizenship status discrimination.
The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), is a federal law covering almost all immigration matters. It protects individuals from employment discrimination based on immigration or citizenship status, and prohibits document abuse discrimination, which occurs when employers request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents, or specify certain documents over others.
Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon national origin, and protects undocumented workers from other forms of discrimination, such as discrimination on the basis of race or color, sex or religion. Other federal laws prohibit discrimination against undocumented workers on the basis of age and disability.
IRCA’s anti-discrimination provision prohibits discrimination against “protected individuals,” who include citizens or nationals of the United States, permanent residents, lawful temporary residents, refugees, and asylees.
U.S. citizens, U.S. nationals, and authorized aliens are protected from discrimination on the basis of national origin if the employer employs more than 4 employees. While Title VII covers only workplaces with 15 or more employees, INA/IRCA prohibits discrimination on the basis of national origin in workplaces where the employer employs between 4 and 14 employees.
If two non-citizens have different immigration status, an employer may not favor one status (such as permanent resident) over another (temporary resident with work authorization) or require certain kinds of documents from one employee and not from the other.
You are also protected during hiring processes. Importantly, however, work authorization is not the same as immigration or citizenship status; Employers are legally prohibited from hiring any person who is unauthorized to work in the U.S.
All employers with 4 or more employees are covered by the laws against discrimination based on immigration, citizenship status, and document abuse. While Title VII covers only those workplaces 15 or more employees, INA/IRCA prohibits discrimination on the basis of national origin in workplaces with between 4 and 14 employees. The only difference between the two anti-discrimination laws concerns which governmental agency enforces the laws against your employer.
Generally, no. It is discriminatory for employers to ask prospective employees during an interview if they are a U.S. citizen or not – except in rare cases for certain federal government jobs that require citizenship. After an employer offers a job, they can and should request proof of work authorization. Work authorization is not the same as citizenship. To avoid discriminating and to meet INA requirements, employers must ensure that all their employees are authorized to work in the U.S.
Generally not. A “U.S. citizens-only” policy in hiring is illegal. An employer may require U.S. citizenship for a particular job only if it is required by federal, state, or local law, or by government contract.
No. Client or customer preferences do not allow your employer to engage in illegal discrimination.
No. To avoid claims of unlawful citizenship discrimination or document abuse, employers are required to treat everyone the same — regardless of appearance, accent, name, or citizenship status — when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing.
Under IRCA, employers are required to ask for documents establishing identity and authorization to work in the United States. There are several combinations of legally acceptable documents from which they can choose. These combinations are listed on the back of the I-9 form, which must be completed for every employee, regardless of national origin, including U.S. citizens. As long as the documents presented prove identity and work authorization, and are included in the list on the back of the I-9 form, they are acceptable. Employers cannot prefer one document over others for purposes of completing the I-9 form.
Not all authorized aliens carry the same documents. Employers may not request more or different documents than are required to verify employment eligibility, reject reasonably genuine-looking documents, or specify certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin. For example, not all aliens who are authorized to work are issued green cards. As long as the documents are allowed by law, appear to be genuine, and relate to the person, they should be accepted. To not accept such documents is illegal.
These protections prohibit discrimination against U.S citizens as well as all individuals authorized to work in the United States.
No, in fact it is illegal to discriminate against an individual upon these grounds. As an employer you are required to accept any document an employee presents from the lists of acceptable documents, as long as the document reasonably appears to be genuine and to relate to the employee. Furthermore as an employer, you may not:
- demand that an employee show specific documents;
- ask to see employment authorization documents before an individual accepts a job offer;
- refuse to accept a document, or refuse to hire an individual because a document will expire in the future;
- refuse to accept a receipt that is acceptable for Form I-9 purposes; or
- demand a specific document when re-verifying that an employee is authorized to work.
However, it is important to note that employers are required to reject paperwork that does not reasonably appear to be genuine or that does not relate to the individual presenting them.
Immigration Reform and Control Act was the first federal law making it illegal for employers to knowingly hire persons who are not authorized to work in the United States. IRCA also made it illegal to continue to employ an undocumented worker or one who loses authorization to work. IRCA prohibits employers from knowingly hiring undocumented workers and requires employers to verify their employees’ identity and work eligibility as specified on the I-9 Form.
An employer who knowingly hires an undocumented worker and/or fails to verify an employees’ identity and work eligibility may be liable for criminal sanctions.
According to the Equal Employment Opportunity Commission (EEOC), the governmental agency that handles discrimination cases, undocumented workers are, with a few exceptions, entitled to the same protections and relief as documented workers under federal anti-discrimination statutes.
If you are an undocumented worker who has been harassed or discriminated against, you should follow the same steps as other workers to file a discrimination complaint. EEOC will not, on its own initiative, inquire into a worker’s immigration status, nor consider an individual’s immigration status when determining whether a discrimination charge has merit.
It is against the law for your employer to report or threaten to report a worker to the Immigration and Nationality Service (INS) because the worker opposed unlawful discrimination or participated in a proceeding under the anti-discrimination laws. If your employer appears to have acquired information about your unauthorized status after you complained of discrimination, the government agency investigating your complaint will also attempt to determine whether your employer’s purpose in finding out information about your immigration status was to retaliate against you.
Any person facing deportation, whether as a result of incidents occurring at work or not, should consult immediately with a lawyer who specializes in immigration law, as this is a serious and complex legal issue beyond the scope of the information provided by this website.
The The Department of Justice’s Immigrant and Employee Rights Section (IER) is responsible for investigating charges of job discrimination related to an individual’s citizenship, immigration status and, in certain situations, national origin. The IRE also investigates charges that an employer has requested that an employee or job applicant establish employment eligibility and identity by presenting more or different documents than are required by law, rejected reasonably genuine-looking documents, or demanded a specific document such as a Permanent Registration Card or “green card.”
The Equal Employment Opportunity Commission (EEOC) is responsible for investigating charges of job discrimination related to an individual’s national origin in workplaces of 15 or more employees. The EEOC also investigates charges of job discrimination on the basis of race, color, sex, age, religion and disability, including charges filed by undocumented workers.
Multiple forms of relief are available to those who successfully prove they were discriminated against because of their immigration or citizenship status. They may recover back pay, reinstatement, and punitive damages. Courts may also issue injunctions, requiring employers to stop discriminatory practices. IER cases may also require employers to undergo monitoring and receive antidiscrimination training. Note, however, that undocumented workers are more limited in the remedies that are available to them.
To learn more about these types of lawsuits, visit our page on discrimination.
It is always best to contact an attorney if you believe you have a claim for discrimination by your employer. The time to file depends on who you are filing with – such as if you are requesting an administrative investigation or are filing a lawsuit. You may file a charge with the IER to investigate your employer’s conduct; On average, IER investigations take seven months.
Before a private lawsuit may be filed for workplaces with 15 or more employees, charges for any laws which are enforced by the EEOC must be filed with the EEOC within 180 days of the alleged discrimination. This is extended to 300 days, however, if state law also prohibits employment discrimination on the same basis.
Visit Workplace Fairness’ page on filing a discrimination complaint for more information.
- DOJ’s Immigrant and Employee Rights Section (IER)
- DOJ’s FAQ page on citizenship status discrimination
- Immigration and Nationality Act (INA) anti-discrimination provision.