UNDERSTANDING THE LAW DID YOU KNOW?
Upon hire, Federal law requires you to establish your eligibility to work in the United States, even if you are a US citizen, by showing your employer documentation establishing your identity and eligibility to work in the United States.
Federal law protects you from employment discrimination based upon your citizenship, immigration status, or national origin. (8 U.S.C. Â§ 1324b)
You can get help by contacting the Office of Special Counsel for Immigration-Related Unfair Employment Practices, within the Civil Rights Division at the US Department of Justice, if:
- Your employer does not understand how to accommodate your disability when completing the Employment Eligibility Verification Form (Form I-9).
- Your employer refuses to allow you to start work because it will not accept the valid and acceptable documentation you presented to complete the Form I-9 or because you do not have valid and acceptable documentation on your first day of work.
- An employer refuses to hire you because you are not a U.S. citizen, even though you have legal authorization to work in the United States
- An employer hesitates to hire you because it does not believe that you are authorized to work in the United States.
The Immigration and Nationality Act (INA) prohibits the knowing hire of individuals who are not authorized to work in the United States. The INA, consequently, requires employers to verify the identity and employment eligibility of every employee, including US citizens. Employers who do not comply may be sanctioned by the Federal Government.
As part of the employment eligibility verification process, all new hires and their employers must complete the DHS Form I-9. On the first day of employment, employees must certify that they are US citizens, noncitizen nationals, lawful permanent residents, or individuals otherwise authorized to be employed in the United States. Within three days of hire, every new employee must show their employer documentation establishing identity and eligibility to work in the United States.
Congress recognized that the employment eligibility verification requirements and potential sanctions against employers for hiring undocumented workers could discourage some employers from hiring certain US citizens and individuals who are authorized to work in the United States. Indeed, studies conducted by the Government Accountability Office confirmed that the Form I-9 process led to discrimination, primarily against US citizens and work authorized individuals who are Hispanic and Asian. In addition, employers may be confused about the proper procedures to complete the Form I-9, and about the appropriate documentation that can be presented to establish employment eligibility and identity.
To address such problems, in 1986, Congress enacted the anti-discrimination provision of the INA that is enforced by the Office of Special Counsel for Immigration-Related Unfair Employment Practices, within the Civil Rights Division, at the US Department of Justice. Employers that are found to have unlawfully discriminated in violation of this provision may be required to pay back wages and civil penalties and to hire or rehire workers.
The INA's anti-discrimination provision contains four prohibitions. First, it prohibits citizenship (or immigration) status discrimination with respect to hiring, firing, and referring or recruiting for a fee. Citizenship status discrimination occurs when an employer treats individuals differently because of their citizenship or immigration status or because the individual is perceived as looking or sounding "foreign." For example, an employer who refuses to hire immigrants or has more stringent hiring requirements for US citizens who appear "foreign" may be committing citizenship status discrimination. US citizen and "green-card" (i.e., permanent resident) only policies are generally prohibited, unless required by law, regulation, or government contract. Employers may not refuse to hire refugees and asylees because their work authorization contains a future expiration date. All employers with more than three employees are covered by the INA's prohibition against citizenship status discrimination.
The INA prohibits national origin discrimination with respect to hiring, firing, and referring or recruiting for a fee. Employers may not treat individuals differently because of their place of birth, country of origin, ancestry, native language, or accent. OSC covers national origin discrimination charges against employers with four to fourteen employees; the Equal Employment Opportunity Commission has jurisdiction over national origin claims involving employers with 15 or more employees.
The INA also prohibits unfair documentary practices during the employment eligibility verification (Form I-9) process. In general, employers may not request more or different documents than are required to establish a worker's identity and eligibility to work in the United States or reject documents that appear to be reasonably genuine upon their face. They must accept all documents that are sufficient to complete the form as long as they appear reasonably genuine on their face and relate to the employee. All individuals who possess a driver's license and Social Security card may present them to satisfy Form I-9 requirements. Employers may not require aliens to produce "green cards" or US citizens who appear "foreign" to produce birth certificates. Instead, it is the employee's choice which of the acceptable Form I-9 documents to present. All employers with more than three employees are covered by the INA's prohibition against unfair documentary practices.
It is unlawful for employers to intimidate, threaten, coerce, or retaliate against an individual who intends to or has filed a discrimination charge with OSC, has provided testimony or otherwise assisted OSC in an investigation, proceeding, or hearing, or has otherwise asserted their rights under the statute.
OSC staff members (who have access to language interpreters) can help workers by calling employers and explaining proper verification practices and, when necessary, by providing victims of discrimination with charge forms. Upon receipt of a charge of discrimination, OSC investigations typically take no longer than 7 months. Victims may obtain various types of relief, including job relief and back pay.
OSC also has an extensive outreach program. It provides staff to speak at outreach events throughout the country, and has free informational brochures, posters and tapes for distribution.
To contact OSC, please call or write:
Office of Special Counsel for Immigration-Related Unfair Employment Practices
Civil Rights Division
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
OSC makes every effort to respond within 30 days to inquiries that relate to its work.
The OSC Homepage includes valuable resource material, frequently asked questions, and links to other helpful sites.