The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has cautioned against requesting that a job applicant specify their citizenship and immigration status during the application phase of hiring.  The OSC warns that such an act may lead potential non-citizen applicants to believe that the employer wrongly considered this information in its hiring decision.  According to the Immigration and Nationality Act, refusing to hire a work-authorized individual based on citizenship or immigration may constitute a violation of its anti-discrimination provisions. 

The warning comes in response to questions regarding software and internet sites that request the visa status of job seekers and then provide it to potential employers.  The OSC  advised that systems that attempt to determine immigration status and work eligibility in advance of an applicant’s acceptance of a job offer may lead to mischaracterizations and may not account for potential changes in an applicant’s status that may occur prior to completion of Form I-9.

The OSC is the agency responsible for the enforcement of laws that prohibit discriminatory practices in the recruitment, hiring, employment eligibility verification (Form I-9) process or dismissal of persons authorized to work in the U.S. as well as ensures compliance with the Immigration and Nationality Act. These practices include citizenship status discrimination, national origin discrimination, document abuse (requesting more or different documents during the I-9 process) and retaliation.  Below are some suggestions from the OSC as to how to avoid immigration-related employment discrimination:

  1. Treat all people the same regarding job announcements, submittal of applications, interviewing, job offers, work authorization verification, hiring, and firing;  
  2. Avoid “citizens only” hiring policies or requiring a certain immigration status;  
  3. Provide the same job information over the telephone and use the same application form for each applicant;
  4. Allow the employee to choose which documents to present, so long as they prove identity and work authorization and are included in the acceptable list found on the back of Form I-9; and,
  5. Base all decisions about termination on job performance and/or behavior.  Avoid decisions based on appearance, accent, name, or citizenship status.

For more information about the OSC and ways to avoid discrimination, visit: Office of Special Counsel.