Best Practices for Recruiting and Hiring Workers
The Immigration and Nationality Act prohibits citizenship status and national origin discrimination with respect to hiring, termination, and recruiting or referring for a fee. This law is found at 8 U.S.C. § 1324b.
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.
Best Practices for Employers and Recruiters When Hiring
Treat U.S. citizens, non-U.S. citizen nationals, lawful permanent residents, and workers granted asylum or refugee status 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.
Treat workers consistently in recruitment or hiring, without regard to their actual or perceived national origin. 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 that IER enforces. 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. 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, and by contacting IER.
Avoid creating unnecessary hurdles for work-authorized individuals who may not have received a Social Security number yet, including some newly-arrived lawful permanent residents and workers granted refugee status. For example, unnecessarily requiring a Social Security number 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 Social Security number, and the Internal Revenue Service and SSA explain how to report an employee’s wages until the employee provides you with the Social Security number. If you use E-Verify, E-Verify instructs you to delay creating the E-Verify case until the worker has received a Social Security number 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. You can also learn more about not requiring a Social Security number 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 unless there is a legal requirement to limit hiring based on citizenship status. 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. 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 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.