Unlawful Use of Requirements Relating to Immigration Status in Recruitment May Lead to Discrimination Claims

U.S. employers must carefully screen their recruitment process and advertisement language relating to the citizenship status of job applicants. The Department of Justice’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) has recently reported a number of cases in which fines were assessed against employers due to the use of “citizens only” standards in the recruitment process, when an appropriate legal exception did not apply. We discuss the prohibitions and exceptions relating to the use of citizenship or immigration status limitations in the job recruitment process.

The anti-discrimination provisions of the Immigration and Nationality Act (INA) prohibit, among other things, citizenship status and national origin discrimination in hiring, firing, recruitment or referral for a fee; document abuse; retaliation and intimidation. The INA’s anti-discrimination provision prohibits employers from discriminating in hiring, firing and recruiting or referring for a fee based on a person’s citizenship, immigration status or national origin. Employers may not limit job opportunities to U.S. citizens, unless employers have a legal basis to do so, such as a law, regulation or government contract that imposes citizenship requirements on the position. Similarly, recruiters and referrers for a fee may not impose barriers to obtaining employment based on an individual’s citizenship, immigration status or national origin. This means that, unless a legal exception applies, employers and recruiters may not advertise jobs as available only to U.S. citizens because doing so excludes other work-authorized individuals, such as U.S. nationals, certain lawful permanent residents (often referred to as green card holders), asylees and refugees.

Recent OSC trends show a crackdown on employers who have implemented unlawful “citizen only” requirements in the recruitment process. For example, in a news announcement, dated June 20, 2016, OSC announced that it had reached agreements with 121 podiatry residency programs and the American Association of Colleges of Podiatric Medicine (AACPM) to resolve claims that they discriminated against work-authorized non-U.S. citizens in violation of the INA. The department’s investigations found that between 2013 and 2015, the programs and AACPM had allegedly created and published discriminatory postings for podiatry residents through AACPM’s online podiatry residency application and matching service. Specifically, OSC reportedly determined that hundreds of job postings had limited podiatry residency positions to U.S. citizens, even though there was no legal authorization for the citizenship requirement. Several work-authorized non-U.S. citizens had reportedly been discouraged or deterred from applying to residency programs because of the citizenship requirements.  OSC concluded that two lawful permanent residents had been denied consideration for positions because of unlawful citizenship requirements. The settlement required the programs and the AACMP to train their staff and to pay a civil penalty.

The above prohibition does not bar employers from stating in recruitment materials that immigration visa sponsorship will not be provided, as long as such “no sponsorship” policy is applied in a non-discriminatory fashion, regardless of race, gender, ethnic origin, etc. Employers may limit the employment to individuals who will not require immigration sponsorship now or in the future. OSC has indicated that employers may lawfully ask the following questions of job applicants:

  1. Are you legally authorized to work in the United States on a full-time basis?
  2. Will you now or in the future require sponsorship for employment visa status (e.g. H-1B visa status)?

For example, the questions above may be asked of applicants in the course of a recruitment campaign conducted in relation a Labor Certification (PERM) employment-based immigration case. When conducting recruitment for such a case, employers may lawfully reject applicants for the advertised position who are not U.S. Citizens, U.S. Nationals, certain lawful permanent residents and certain types of work-authorized individuals (for example, refugees and asylees).

It is important for U.S. employers to understand the implications of rejecting employment-authorized non-U.S. Citizens based on their immigration status. U.S. employers that are not authorized by law, regulation or government contract to limit job opportunities to U.S. citizens should carefully review their recruitment practices and advertisement templates to ensure that the above prohibited language or limitations are not present. U.S. employers should consult with a legal professional when in doubt.

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