Written by attorney Carlos Lewis McDade

Companies May Not Discriminate Based On Citizenship Status

While there has been a lot of attention directed toward the issue of the hiring of illegal immigrants, recruiters and employment referral companies must also be careful to follow the laws regarding the hiring of citizens and legal immigrants. Whether they consider themselves to be large corporations or small businesses, employers should be wary of the rules regarding employment of citizens, certain visa holders and “work authorized immigrants."

The Immigration and Nationality Act § 274B, 8 U.S.C. § 1324b, is a federal statute that prohibits discrimination in hiring, firing, or recruitment or referral for a fee that is based on an individual's national origin or citizenship status. The statute also prohibits unfair documentary practices during the employment eligibility verification (Form I-9) process (document abuse), and retaliation or intimidation.

Recruiting companies and companies that refer job applicants for a fee are also governed by the law. Case in point - the Department of Justice recently settled a case it brought against the American Academy of Pediatrics (“APA") in Illinois. The APA limited job applicants to citizens and certain visa holders. However, the Immigration and Nationality Act (INA) also prohibits recruiters or referrers for a fee from discriminating on the basis of citizenship status. As work-authorized immigrants are allowed to work, prohibiting them from applying for jobs constituted discrimination against them and a violation of the INA.

Another example illustrates that employers may not discriminate against U.S. citizens either. According to the Justice Department in its case against Iflowsoft LLC, a computer programming services provider in Iselin, New Jersey, Iflowsoft posted several job advertisements for IT professionals expressing a preference for temporary visa holders (specifically H-1B transfers and/or OPT candidates). The facially discriminatory advertisements deterred the charging party, a U.S. citizen, from applying to Iflowsoft. In addition, the Justice Department found that Iflowsoft hired an H1-B visa holder without considering a qualified U.S. citizen applicant. The Immigration and Nationality Act (INA) generally prohibits employers from discriminating based on citizenship status during the hiring process and that protection also includes citizens.

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