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).
Employers may not treat individuals differently because they are, or are not, U.S. citizens or work authorized individuals. U.S. citizens, asylees, refugees, recent permanent residents and temporary residents are protected from citizenship status discrimination. Employers may not reject valid employment eligibility documents or require more or different documents on the basis of a person’s national origin or citizenship status.
Guidelines for Employers and Recruiters
- Do treat equally U.S. citizens, lawful permanent residents, temporary residents, asylees and refugees in recruitment or hiring.
- Do embrace equal employment practices, including refraining from discriminating on the basis of national origin or immigration and citizenship status
- Do avoid making the assumption that only U.S. citizens are authorized to work in the United States
- Do avoid the following language in job postings:
- “Only U.S. Citizens”
- “Citizenship requirement” (unless U.S. citizenship is required by law, regulation, executive order or government contract)
- “Only U.S. Citizens or Green Card Holders”
- “H-1Bs Only”
- “Must have a U.S. Passport”
- “Must have a green card”
- Do allow all employees (including non-U.S. citizens) to provide any permissible documents to establish their identity or work authorization during the employment verification process.
- Do recognize that refugees and those newly granted asylum who have not yet received a Social Security number may not be fully able to complete on-line applications even though they are authorized to work in the U.S. indefinitely, and avoid creating unnecessary hurdles for such individuals.
The Embry-Riddle Aeronautical University Career Services Office strongly recommends that employers posting positions through Handshake and recruiting on campus follow these guidelines to remain in compliance with the law. This means that only those employers who are required by law, regulation, executive order or government contract should indicate in a job posting that only U.S. citizenship is required.
According to the National Association of Colleges and Employers, the Department of Labor has sanctioned the following acceptable questions which an employer can ask a student to determine authorization to work:
- Are you legally authorized to work in the United States for any employer?
- Will you now or in the near future require visa sponsorship?
The DOJ also indicates that employers may clearly state in a job posting that they do not sponsor work visas, if applicable.
For further information on immigration-related employment discrimination, contact the Department of Justice Division of Civil Rights Office of Special Counsel at 800-255-8155 (Employer Hotline) or at 202-616-5594 (main line).
Please note: As of July 2015 the Second Circuit U.S. Court of Appeals (CT, NY, VT) and as of September 2015 the Eleventh Circuit Court (FL, GA, AL) made decisions rejecting United States DOL’s views as being inappropriate to an assessment of the “modern internship.” In the context of unpaid internships, the following set of considerations was initiated. Applying these considerations requires weighing and balancing all of the circumstances. No one factor is dispositive and every factor need not point in the same direction for the court to conclude that the intern is not an employee entitled to the minimum wage. In addition, the factors specified are non-exhaustive—courts may consider relevant evidence beyond the specified factors in appropriate cases.
More information can be found on the Department of Justice, Civil Rights Division website.