Most employers and employees understand it is against the law to discriminate against applicants or employees due to their race or national origin. Discriminating against someone because of his or her immigration or citizenship status may also violate federal law.
Whether intentionally or inadvertently, U.S. employers sometimes treat applicants and employees differently because of their immigration status. If that happens, the affected individual may have a legitimate discrimination complaint.
The Immigration Reform and Control Act of 1986 requires most employers to verify the identity and work eligibility of all new hires. To do so, employers must complete I-9 forms. If an individual has authorization to work in the U.S., the IRCA also prohibits employers with more than 4 employees from using his or her immigration or citizenship status to take adverse employment action.
The I-9 requirement
Unlike employees, applicants do not have to have authorization to work in the U.S. Instead, new hires only must provide acceptable I-9 documentation by the end of their third day of employment. If an employer refuses to hire an applicant because he or she cannot satisfy the I-9 requirement earlier than his or her third day of work, the employer may be engaging in impermissible discrimination.
Restrictive job postings
When recruiting for workers, employers must be careful not to violate the anti-discrimination provisions of federal law. If an employer only accepts applications from U.S. citizens, for example, the employer may be asking for trouble.
While there is usually nothing inherently wrong with narrowly tailoring job postings, employers must be careful with language that may cause citizenship or immigration status discrimination.