Immigration Status 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.
While workers are also covered by several other workplace laws, these are the main federal laws which protect workers against discrimination based on immigration or citizenship status.
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.
The law’s protections apply to job applicants as well as current employees. If you are a current employee and are fired or not promoted due to your immigration or citizenship status, you are protected by the law. If you are not hired due to your immigration or citizenship status and/or the valid work authorization documents you present, you are also protected by the law.
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.
An employer should not ask about your citizenship status during a job interview. The employer can only notify you as a job applicant that, should a job be offered to you, you will be expected to provide evidence that you are legally entitled to work in the US within the first three days of starting work. The employer should say this to every job candidate, as saying this selectively may be illegal discrimination.
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
- 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.
IRCA 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. (Those hired before November 6, 1986, do not fall within this category.) 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 Department of Justice’s Office of Special Counsel for Immigration-related Unfair Employment Practices (OSC) is responsible for investigating charges of job discrimination related to an individual’s citizenship, immigration status and, in certain situations, national origin. The OSC 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 Alien 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.
Contact the Office of Special Counsel (OSC) if your claim is for:
- immigration status discrimination and/or
- document abuse only, or
- national origin discrimination, and there are 4-14 employees at your workplace.
See our page on filing a discrimination complaint if your claim is for:
- discrimination other than immigration status discrimination or document abuse, and
- there are 15 or more employees at your workplace.
Those who successfully prove they have been discriminated against because of their immigration or citizenship status can recover back pay, job offer, and reinstatement. OSC settlements can also require employers to stop discriminatory practices, pay monetary penalties, undergo monitoring, and receive antidiscrimination training.
If you are an undocumented worker and your employer discriminates against you in violation of any of the federal antidiscrimination statutes, you may obtain various kinds of relief as permitted by the federal statutes. For more detail, please see the page on this site that discusses the specific kind of discrimination that you suffered.
An undocumented worker hired on or before IRCA was passed on November 6, 1986 is eligible for reinstatement. If you were hired after that date and your employer knows that you are undocumented, you must supply proper documentation verifying employment eligibility to be reinstated.
Undocumented workers are also nominally protected by the National Labor Relations Act from retaliation (including termination) for their union activities (such as organizing) even though they are undocumented. We say “nominally” because the Supreme Court has recently decided that while it is illegal for an employer to discharge an undocumented worker for union activities, the worker is not entitled to backpay for such retaliation.
For workplaces with between 4 and 14 employees, you must file a charge with OSC within 180 days from the date you believed that you were discriminated against in order to protect your legal rights. To protect your rights, it is always best to contact OSC or an attorney promptly when you suspect discrimination has occurred.
For workplaces with 15 or more employees, please note that all laws enforced by Equal Employment Opportunity Commission (EEOC) require filing a charge with the EEOC (or a cooperating state agency) before a private lawsuit may be filed in court. Many states also require that you file with a state administrative agency or with the EEOC to enforce state laws. There are strict time limits within which charges must be filed. See filing a discrimination complaint for more information.
Department of Justice’s Office of Special Counsel for Immigration-related Unfair Employment Practices (OSC)
EEOC Questions & Answers: Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws
EEOC Rescission of Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws