On March 23, 2012, the U.S. Court of Appeals for the Eighth Circuit issued its decision in Guimaraes v. SuperValu, Inc., No-11-1046 (8th Cir. 2012). In Guimaraes, a former SuperValu employee sued, claiming national origin discrimination and retaliation violations of Title VII of the Civil Rights Act and the Minnesota Human Rights Act. According to the plaintiff, she worked in the United States under an H-1B nonimmigrant visa, and her employer agreed to sponsor her for a Green Card. Thereafter, however, she had a series of disagreements with her supervisors about her performance and claimed that the employer discriminated against her by terminating her employment and then refusing to extend her H-1B status or continue with her Green Card process. Conceding for the sake of argument that her employer had refused to continue sponsoring her, the Eighth Circuit found that this did not constitute unlawful discrimination under Title VII. As the Eighth Circuit noted:
True, a reasonable jury could find the "green card" statement evinces an intent to terminate Guimaraes because she is not yet a permanent resident. The Supreme Court has held, however, that while, "[a]liens are protected from illegal discrimination under Title VII, "nothing in [Title VII] makes it illegal to discriminate on the basis of citizenship of alienage. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 85 (1973); see also Lixin Liu v. BASF Corp., 409 Fed. Appx. 988, 991 (8th Cir. 2011) (unpublished)(rejecting Title VII claims where the plaintiff "conflate[d] national origin and alienage. His employment status was terminated because of his immigration status, not his Chinese ancestry." (citations omitted)).
Human resource professionals often express reluctance to inquire into immigration status for fear that this could constitute a Title VII violation. As the Eighth Circuit's decision in Guimaraes demonstrates, immigration status is not protected under Title VII, so decisions made by employers that rest solely on their willingness to sponsor FNs, without more, do not violate federal law.