The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act. Under this law, employers discriminate when they treat workers differently in the hiring and firing process because a worker is or is not a U.S. citizen, because of a worker’s particular immigration status, or because of where a worker is from or appears to be from. Additionally, employers may not treat workers differently for these reasons when completing the Form I-9 and E-Verify process. 

In an effort to aid employers in complying with the Immigration and Nationality Act’s anti-discrimination provision, OSC recently released an update to its “Fact Patterns Flyer” and provided guidance to employers concerning various forms of discrimination. The Flyer is based on examples from OSC’s recent enforcement of the Immigration and Nationality Act’s anti-discrimination provision.  According to the Flyer, an employer may be discriminating in the hiring and firing process when it:

  • Refuses to hire workers who sound or appear foreign.
  • Prefers to hire U.S. citizens (unless required by law).
  • Hires non-immigrant visa holders but rejects qualified U.S. citizens and lawful permanent residents who apply for the same jobs.
  • Hires undocumented workers instead of employment-authorized individuals.
  • Fires employment-authorized workers for misrepresenting their prior work status but does not fire other workers for misrepresenting other types of employment application information.

According to the Flyer, an employer may be discriminating in the Form I-9 process when it:

  • Demands specific documents from non-U.S. citizen workers.
  • Asks non-U.S. citizens and foreign-born citizens for more documents than needed to complete the Form I-9.
  • Rejects valid employment authorization documents from non-U.S. citizens.
  • Demands that lawful permanent residents present a new “green card” when the card expires.

According to the Flyer, an employer may be discriminating in the E-Verify process when it:

  • Terminates or suspends non-U.S. citizen workers for whom it receives tentative non-confirmations, or otherwise interferes with the tentative non-confirmation resolution process.
  • Uses E-Verify as a pre-screening tool on a selective basis.
  • Uses E-Verify to confirm the continuing employment authorization of non-U.S. citizen workers who are not subject to reverification.
  • Requires non-U.S. citizen workers to provide additional documentation establishing their employment-authorization for E-Verify purposes.

According to the Flyer, an employer may also be violating the anti-discrimination provision when it:

  • Retaliates against a worker who asserts rights protected under the Immigration and Nationality Act’s anti-discrimination provision.