Preferring a Citizen Over an Authorized Worker

An employer that decides to hire only citizens has not simplified its compliance position. It has traded a verification question for a discrimination question, and the second is enforced by a different part of government with a different set of remedies. The statute that prohibits hiring unauthorized workers contains, immediately after it, a provision prohibiting discrimination against authorized ones.

The two prohibitions in the provision

The section prohibits discrimination with respect to hiring, recruitment or referral for a fee, or discharge, on two grounds. The first is national origin, and it protects any individual other than an unauthorized worker. The second is citizenship status, and it protects a narrower group described as protected individuals. The distinction between the two classes is the first thing to establish in any analysis.

Two exceptions cut across both. The provision does not apply to an entity employing three or fewer employees. And a national origin claim does not lie here where the conduct is covered by the general employment discrimination statute, which draws a practical line by employer size and routes larger employers to a different agency for that ground.

A third exception is more often relied on than understood. Discrimination because of citizenship status is permitted where it is otherwise required in order to comply with law, regulation or executive order, or required by a federal, state or local government contract, or determined to be essential for the employer to do business with a government body. Each limb points to an identifiable source, and an employer invoking one should be able to name it.

Who is a protected individual

The class comprises citizens and nationals of the United States, lawful permanent residents, individuals granted certain forms of temporary residence, refugees admitted under the relevant provision, and those granted asylum. It is a defined list, not a synonym for everyone authorized to work, and a worker outside it has no citizenship status claim even though a national origin claim may remain available.

The definition also contains timing conditions that surprise people. A permanent resident who does not apply for naturalization within six months of first becoming eligible falls outside the class. So does one who applied on time but has not naturalized within two years of the application, unless actively pursuing naturalization, with processing time excluded from the two-year count. Those conditions are rarely litigated but they are part of the definition.

The consequence for practice is that an employer cannot determine whether a candidate is protected without asking questions it has no reason to ask. That is a feature rather than a defect. The workable rule is to treat every authorized worker as protected and to make hiring decisions on capacity to do the job, which produces the right answer in every case without any inquiry into status.

The equal qualification exception

The provision states that it is not an unfair practice to prefer to hire, recruit or refer a citizen or national over an alien where the two individuals are equally qualified. The exception is real and it is narrow, and the narrowness lies in the comparison it presupposes.

Equal qualification is a finding about two identified people assessed against criteria. It cannot be established in the abstract, and it cannot support a policy, because a policy operates before any candidates exist. An employer relying on the exception must be able to produce the criteria, the assessment, and the conclusion that the two candidates were equal, which is a higher evidential burden than employers expect when they invoke it.

A related trap is the reverse preference. An employer that prefers a worker on a temporary authorization because that worker is thought less likely to leave has discriminated on the basis of citizenship status just as surely as one preferring a citizen. The provision is symmetrical in its treatment of protected individuals, and a preference operating against them is within it whichever direction it runs.

How a charge proceeds

A charge is filed with the enforcement section by an individual adversely affected, by someone on that person's behalf, or by an immigration officer. It must be in writing under oath or affirmation and contain the information the regulation requires. The section serves notice of the charge on the employer within ten days, which is often the employer's first knowledge of the matter.

Timing is strict at the front end. No complaint may be filed in respect of a practice occurring more than 180 days before the charge was filed, which makes the filing date the boundary of what can be pursued. Within 120 days of receiving the charge the section investigates and decides whether to file a complaint, and it must issue determination letters to both parties by the end of that period if it does not. What follows, including remedies and monitoring, is described in a document discrimination investigation and what it costs.

Where employers go wrong

Most breaches in this area are policies rather than incidents. A recruiting instruction that names a status, a screening question that asks about future sponsorship needs, an applicant tracking configuration that filters on a status field. Each operates across every candidate and produces a pattern rather than an anecdote, which is why the exposure is rarely limited to the person who complained.

Adjacent conduct compounds it. An employer that restricts hiring by status usually also advertises in terms that reflect the restriction, addressed in recruitment advertising that excludes lawful workers, and applies a documentary process that reflects it as well, addressed in the employee's choice of documents. Because the policies are usually drafted long before anyone complains, a citizenship discrimination counsel reviewing the recruiting stack tends to find more than a review prompted by a single charge would.