Dear Littler: We are a multi-state manufacturing company with facilities throughout the United States. Like many companies, we have experienced a great deal of employee turnover in the last few years. Many of our employees are immigrants. As we are advertising for and hiring new employees, can we require proof of permanent residence so we can be assured employees will stick around? And can we refuse to hire those whose employment authorization documents are set to expire within a year?
—Concerned in Chicago
The short answer is "no" in both cases. The U.S. Immigration and Nationality Act (INA) prohibits employers with four or more employees from discriminating because of citizenship status in hiring, firing, recruitment, or referral for a fee unless U.S. citizenship is required in order to comply with a law, regulation, or executive order, or if required by a federal, state, or local government contract.1 In addition, employers may not require different or additional documents from those required to verify employment eligibility and identity on Form I-9.2 The U.S. Department of Justice (DOJ), which enforces the anti-discrimination provisions of the INA, has stated: "[e]mployers are not allowed to specify which documents they will accept from a worker and should not prevent an individual from working because of a document's future expiration date."3
So, when advertising for new hires or making hiring decisions, you may not require that potential employees have permanent residency (otherwise known as a "green card") or consider the expiration date of the documents they present unless your company meets one of the exceptions under the INA.
Citizenship Status Discrimination
The DOJ, through the Immigrant & Employee Rights (IER) Section, has been very active in pursuing cases involving citizenship status discrimination. The DOJ recently entered into settlements with 20 companies to resolve claims they discriminated against non-U.S. citizens by job postings with citizenship status restrictions on college recruiting platforms. The total civil penalty for all 20 employers was over $1.1 million, and the employers were also required to undergo training and change their recruitment practices.
In a similar case, the DOJ reached a settlement with a staffing and recruiting company that it found violated the INA by, among other things, posting job advertisements seeking only U.S. citizens and lawful permanent residents. In addition to civil penalties, the company was required to revise its policies and procedures, train employees and agents on the INA's anti-discrimination provision and be subject to monitoring for a three-year period to ensure compliance.
I note you are writing from Chicago. You should also be aware that in August 2021, the Illinois Human Rights Act (IHRA) was amended to prohibit discrimination against employees and job applicants based on their "work authorization status[.]"4 Under the IHRA, "work authorization status means the status of being a person born outside of the United States, and not a U.S. citizen, who is authorized by the federal government to work in the United States."5 California,6 Washington7 and New York City8 also prohibit discrimination in employment based on immigration or citizenship status.
In addition to actions by the DOJ, there has been a proliferation of lawsuits, including class actions, by recipients of DACA (Deferred Action for Childhood Arrivals)9 alleging hiring discrimination based on alienage under Civil Rights Act, Section 1981. Many of the lawsuits have been filed by MALDEF (Mexican American Legal Defense and Educational Fund), against a number of major corporations. These cases generally allege that an applicant for employment was expressly rejected because of their DACA status based on company policies requiring employees have permanent residence or an indefinite right to work in the United States. While most of these cases have settled for undisclosed sums, employers should be mindful of the cost of litigation and the ensuing publicity, which should cause companies that have such policies to consider amending them.
As mentioned above, federal law requires employers complete Form I-9, Employment Eligibility Verification, to verify a new hire's identity and authorization to work in the United States. There are, however, very strict limits on what documents an employer can require to verify work authorization. The acceptable documents are listed on the last page of the form, and an employer cannot require additional documents or specify which documents on the required lists an employee must provide.
The DOJ has been particularly active in investigating and obtaining settlements in cases involving what it terms "Unfair Documentary Practices." Last fall, for example, the DOJ entered into settlement agreements with two companies for document violations. In its investigations, the DOJ has found the companies required non-citizens to show specific types of documents to establish authorization to work in the United States. For example, lawful permanent residents were required to show permanent resident cards (sometimes known as "green cards"), and asylees and refugees were required to provide employment authorization documents (sometimes known as "work permits"). At the same time, the DOJ found the companies allowed U.S. citizens to choose from among various acceptable documents when completing the I-9 forms. In addition to monetary penalties, the companies will be subject to monitoring by the DOJ for three years.
In sum, Concerned, your company and other employers are advised to tread carefully to avoid violations of federal and state laws regarding immigration or citizenship status to avoid pitfalls for the unwary.
1. 8 USC §1324b.
2. The United States Citizenship and Immigration Service (USCIS) has announced: "Employers should continue using the Form I-9, Employment Eligibility Verification, after its expiration date of Oct. 31, 2022 until further notice. DHS will publish a Federal Register notice to announce the new version of the Form I-9 once it becomes available." See USCIS, Employer Alert: Continue to Use Current Form I-9 | USCIS.
9. The Deferred Action for Childhood Arrivals program, enacted in 2012, allows qualifying immigrants who came to the U.S. as children to apply for renewable, two-year permits that protects them from deportation by the Department of Homeland Security (DHS) and allows them to work in the U.S.. Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (dhs.gov). Based on an injunction issued by the U.S. Court of Appeals for the Fifth Circuit in October 2022, DACA remains in effect for those previously granted DACA status, but DHS is prohibited from granting DACA requests and related employment authorization to new applicants. Consideration of Deferred Action for Childhood Arrivals (DACA) | USCIS.
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