Immigration Rights in the Hiring Process

July 19, 2014


Much too often individuals are subjected to unlawful discriminatory practices in the hiring process based on their immigration status.  Not understanding their rights, job opportunities may be unjustifiably lost and aspirations for a better future unattained.

For example, individuals are often unaware that they cannot be a refused for a job because they only have a work permit rather than a green card or US citizenship.  As well, a job applicant cannot be refused a job offer because they only have a conditional green card.  Individuals who encounter these type of discriminatory hiring processes have legal rights against companies engaged in these unlawful practices. 

Under the Immigration Reform and Control Act of 1986 (“IRCA”), it is illegal for employers to
discriminate in hiring, firing, or recruitment based on a person’s status as a citizen or an immigrant.  This means that, as long as an individual has legal documentation to work in the U.S., a company or employer cannot refuse to hire him on the basis of his citizenship or immigration status, nor can they ask for additional documents beyond the valid documents listed in the I-9 Employment Eligibility Verification Form.

So long as the requirements of the I-9 are satisfied by the documents provided, employers cannot (1) ask for additional documents, (2) reject valid documents, or (3) ask the employee to provide specific documents from the I-9 list.  As long as the individual provides the required I-9 documents, as chosen by them, and they reasonably appear to be genuine, the employer must hire the individual even if they are only presenting a temporary work permit, conditional green card, or green card.  The only exemption from this mandate is if there is a specific law, regulation, or government contract that requires the employer to hire only U.S. citizens or permanent residents.

Individuals should be aware that a prospective employer can only ask for documents related to the I-9 form after the job has been offered. Verification of an individual’s employment eligibility cannot be used in an earlier stage of the hiring process since it may lead to denial of a job offer based on discrimination against an individual’s national origin.  Rather, companies may only inform job applicants that they will verify employment eligibility, such as through the following notice:  “In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification document form upon hire."  Beyond this notice, companies may not engage in any other inquiry as to the individual’s employment eligibility during the hiring process.

As well, IRCA prohibits employers from preferring to hire temporary visa holders, temporary
work authorized individuals, or green card holders.  Just like some companies prefer to hire permanent residents or U.S. citizens, other companies may indicate a hiring preference that is against U.S. citizens.  This, too, is unlawful employment discrimination under IRCA.  In short, employers cannot base a job offer on a person’s immigration status, whatever that may be, and may only conduct the required I-9 employment verification after a formal job offer has been rendered. 

IRCA provides legal recourse for those who have been subjected to employment discrimination due to their immigration status.  For those who are denied a job due to their immigration status, the law allows the individual to file a complaint seeking monetary damages against the company.  As well, an employee may seek monetary damages if they are retaliated against for filing a complaint alleging discriminatory practices or are assisting in an investigation or proceeding under IRCA.

The right to work is one that is fundamental and cannot be harmed due to notions of bigotry and discrimination.  Individuals must understand their rights to ensure that they are protected, and seek justice when wrongful acts are conducted.

For further information, please schedule an appointment with an attorney at Aquino & Loew, Immigration Law Specialists.