The Immigration and Nationality Act prohibits citizenship status and national origin discrimination with respect to hiring, termination, and recruiting or referring for a fee. 8 U.S.C. § 1324b(a)(1)(B).
The Immigrant and Employee Rights Section (IER) of the U.S. Department of Justice’s Civil Rights Division enforces a part of the Immigration and Nationality Act (INA) that prohibits certain types of employment discrimination based on citizenship status and national origin with respect to hiring, firing, and recruiting or referring for a fee. This part of the INA is found at 8 U.S.C. § 1324b(a)(1).
Best Practices for Employers and Recruiters When Hiring
Treat U.S. citizens, non-U.S. citizen nationals, lawful permanent residents, asylees, and refugees consistently in recruitment or hiring, without regard to their citizenship status, except in the limited situation where a law, regulation, executive order, or government contract requires you to consider candidates with certain citizenship statuses. You can learn more about citizenship status discrimination by contacting IER and at 8 U.S.C. § 1324b(a)(1)(B), (2)(C).
Treat workers consistently in recruitment or hiring, without regard to their actual or perceived national origin. The law that IER enforces prohibits national origin at 8 U.S.C. § 1324b(a)(1)(A). IER investigates national origin claims against employers with four to 14 employees, and all work-authorized individuals are protected under this part of the law. The Equal Employment Opportunity Commission (EEOC) investigates national origin claims against employers with 15 or more employees, and all workers are protected under the law that the EEOC enforces, which is found at 42 U.S.C. § 2000e-2.
Adopt employment policies and practices that refrain from discriminating based on citizenship status or national origin.
Do not assume that only U.S. citizens are authorized to work, because many non-U.S. citizens have employment authorization in the United States. You can learn more about employment authorization for non-U.S. citizens at www.uscis.gov, by contacting IER, and at 8 C.F.R. 274a.12(a).
Avoid creating unnecessary hurdles for work-authorized individuals who may not have received a Social Security number (SSN) yet, including some newly-arrived lawful permanent residents and refugees. For example, unnecessarily requiring an SSN to apply for or start a job could create an unwarranted obstacle. The Social Security Administration (SSA) instructs employers that employees are allowed to work while waiting for their SSN, and the Internal Revenue Service and SSA explain how to report an employee’s wages until the employee provides you with the SSN. If you use E-Verify, E-Verify instructs you to delay creating the E-Verify case until the worker has received an SSN and that the worker may work during this time if the worker has completed the Form I-9. More information is available at www.e-verify.gov and at 8 U.S.C. § 1324a note Sect. 403(a)(1)(A). You can also learn more about not requiring an SSN from job applicants and new hires in the EEOC’s guidance on national origin discrimination.
Best Practices for Persons or Entities Advertising Employment Positions
Unless legally required, avoid language in job postings that limits eligibility based on citizenship status, such as:
- "Only U.S. Citizens"
- "Citizenship Required"
- "Only U.S. Citizens or Green Card Holders"
- "H-1Bs Only"
- "H-1Bs and OPT Preferred"
- "Must have a U.S. Passport"
- "Must have a green card"
- "Must Present U.S. Birth Certificate"
Such discriminatory limitations violate the law that IER enforces at 8 U.S.C. § 1324b(a)(1) unless there is a legal requirement to limit hiring based on citizenship status. You can find more information about this exception at 8 U.S.C. § 1324b(a)(2)(C). Ensuring that job postings are consistent with a legal requirement to restrict jobs to certain citizenship statuses and do not incorrectly exclude citizenship statuses can help employers avoid violating the law that IER enforces.
Job postings that require specific employment eligibility documentation could also violate the law that IER enforces, at 8 U.S.C. § 1324b(a)(6). Under this law, when verifying an employee’s work authorization, employers, recruiters, and referrers for a fee are not allowed to request specific documents, require more or different documents, or reject valid employment eligibility documents because of a person’s citizenship status or national origin. You can get more information on how to avoid discrimination in the employment eligibility verification process here.
Avoid language in job postings that limits eligibility based on national origin, such as “Native English Speakers only.” Such discrimination based on national origin violates the law that IER enforces at 8 U.S.C. § 1324b(a)(1)(A) if the person or entity discriminating has four to 14 workers.
Best Practices for Persons or Entities Whose Hiring, Recruiting, or Referring for a Fee Involves Publishing Job Ads from Third Parties
Inform third parties that discriminatory postings, such as one that requires U.S. citizenship or lawful permanent residence as a condition of employment where not required to comply with law, regulation, executive order, or government contract, are prohibited.
Inform third parties that job postings that discriminate based on national origin are prohibited.
If you identify discriminatory language in job postings, remove those ads or seek legal advice.
For further information on immigration-related employment discrimination, you can contact IER at 1-800-255-8155 (Employer Hotline) or visit IER's website at www.justice.gov/ier.
The information on this webpage is not intended to be a final agency action, has no legally binding effect, and has no force or effect of law. This webpage may be rescinded or modified at the Department’s discretion, in accordance with applicable laws. The Department’s guidance documents, including this webpage, do not establish legally enforceable responsibilities beyond what is required by the terms of the applicable statutes, regulations, or binding judicial precedent. For more information, see "Memorandum for All Components: Prohibition of Improper Guidance Documents," from Attorney General Jefferson B. Sessions III, November 16, 2017.