Unlawful Employment Discrimination Based on Citizenship and National Origin

U.S. Department of Justice, Civil Rights Division, Immigrant and Employee Rights Section, January 2019
U.S. DEPARTMENT OF JUSTICE
CIVIL RIGHTS DIVISION
IMMIGRANT 	EMPLOYEE RIGHTS SECTION	&
he U.S. Department of Justice Civil Rights
Division’s Immigrant and Employee Rights
Section (IER) enforces a law that prohibits
employers from discriminating against
work-authorized individuals based on their
citizenship, immigration status, or national origin. This
law is known as the anti-discrimination provision of the
Immigration and Nationality Act (INA) and can be found at
8 U.S.C. § 1324b and the regulations are at
28 C.F.R. Part 44.
Under this law, the general rule is that employers are not
allowed to hire, fire, or refuse to recruit or hire, a worker
based on the worker’s actual or assumed citizenship,
immigration status, or national origin. 8 U.S.C.
§ 1324b(a)(1). Employers also are not allowed to treat
workers differently for these reasons in the Form I-9 and
E-Verify processes. 8 U.S.C. § 1324b(a)(6). This law also
prohibits retaliation against workers. 8 U.S.C.
§ 1324b(a)(5).
IER investigates and prosecutes such claims of
discrimination. Employers found to have discriminated
may have to pay civil penalties and back pay to
discrimination victims. 8 U.S.C. § 1324b(g)(2)(B).
Examples of unlawful discrimination in hiring and
firing processes (8 U.S.C. § 1324b(a)(1)):
The employer makes hiring decisions based on national
origin.
In February 2018, IER settled a charge-based investigation
after IER’s investigation determined that a restaurant
preferred to hire staff of Japanese or Korean national
origin and denied employment to a qualified applicant
with a different national origin. The employer paid the
applicant back pay and, as part of the settlement, agreed
to pay civil penalties and undergo IER training.
The employer prefers to hire U.S. citizens without a law,
regulation, government contract, or executive order
that would require the restriction.
In June 2018, an employer agreed to pay $17,475 in civil
penalties after IER’s investigation concluded that the
employer failed to consider non-U.S. citizen applicants
and published job advertisements improperly restricting
positions to U.S. citizens only.
UNLAWFUL EMPLOYMENT DISCRIMINATION
BASED ON CITIZENSHIP AND NATIONAL ORIGIN
T The employer hires temporary visa holders but rejects
qualified and available U.S. workers who apply for the
same jobs due to a hiring preference for visa holders.
In June 2018, an employer agreed to pay up to $85,000 in
back pay to U.S. workers after IER determined through its
investigation that the employer discriminated against U.S.
workers in favor of H-2B temporary visa holders in the
hiring process. The employer also agreed to pay $15,600
in civil penalties and engage in enhanced recruiting efforts
for U.S. workers.
The employer prefers to hire undocumented workers
instead of work-authorized individuals.
In November 2010, an employer agreed to pay $2,000
in back pay after IER’s investigation determined that the
employer terminated a lawful permanent resident in
favor of an undocumented worker employed in the same
position.
Examples of unlawful discrimination in the Form I-9
process (8 U.S.C. § 1324b(a)(6)):
The employer demands specific documents from
non-U.S. citizen workers because of their citizenship or
immigration status.
In October 2015, an employer agreed to pay $455,000
in civil penalties after IER, through its investigation,
concluded that the company had a policy of requiring
non-U.S. citizens to produce specific types of “List A”
immigration documentation, such as a “green card,”
during the Form I-9 process before letting them begin
work, while letting U.S. citizens choose which acceptable
documents to present.
The employer asks non-U.S. citizens and foreign-born
citizens for more documents than needed to complete
the Form I-9 because of their citizenship or immigration
status.
ln December 2014, an employer agreed to pay over
$88,000 in civil penalties and almost $120,000 in back pay
to two discrimination victims, after an administrative law
judge found that the company required foreign-born job
applicants and employees to produce more, different, and
specific documents to prove their employment eligibility
verification, while native-born U.S. citizens were allowed
to produce the documentation of their choice.

U.S. Department of Justice, Civil Rights Division, Immigrant and Employee Rights Section, January 2019
This guidance document is not intended to be a final agency action, has no legally binding effect, and has no force or effect of law.
The document may be rescinded or modified at the Department’s discretion, in accordance with applicable laws. The Department’s
guidance documents, including this guidance, do not establish legally enforceable responsibilities beyond what is required by the terms
of the applicable statutes, regulations, or binding judicial precedent. For more information, see “Memorandum for All Components:
Prohibition of Improper Guidance Documents,” from Attorney General Jefferson B. Sessions III, November 16, 2017.
The employer rejects valid employment authorization
documents from non-U.S. citizens.
In January 2016, IER settled a charge-based investigation
after IER’s investigation concluded that the company
improperly rejected a work-authorized non-U.S. citizen’s
documents establishing employment authorization, even
though it had routinely accepted such documents from
U.S. citizens. Under the agreement, the employer paid
back pay and civil penalties, and received training from
IER.
The employer demands that lawful permanent residents
present a new “green card” when the card expires but
does not make similar requests of U.S. citizens when
their U.S. passports expire.
In October 2017, an employer agreed to pay $200,000 in
civil penalties after IER’s investigation concluded that the
employer, among other things, unnecessarily required
lawful permanent residents (LPRs) to prove their work
authorization again when their “green cards” expired,
even though LPRs’ work authorization does not expire.
Examples of unlawful discrimination in the E-Verify
process (8 U.S.C. § 1324b(a)(1);
8 U.S.C. § 1324b(a)(6)):
The employer selectively terminates or suspends
workers for whom it receives tentative nonconfirmations
(TNCs), or otherwise interferes with the TNC resolution
process, because of the workers’ citizenship or
immigration status.
In December 2012, an employer agreed to pay back pay
to a naturalized U.S. citizen and a civil penalty after IER’s
investigation concluded that the employer interfered with
the individual’s ability to resolve her TNC by withholding
E-Verify paperwork from the worker and requesting
additional documentation because she was a naturalized
U.S. citizen.
The employer uses E-Verify to pre-screen workers
selectively because of their citizenship or immigration
status.
An employer creates an E-Verify case for a refugee before
the employer hires the worker and denies the refugee a
job when E-Verify generates a TNC. The employer does
not create E-Verify cases for native-born U.S. citizens
before hire. Alternatively, the employer pre-screens
every applicant through E-Verify but only eliminates from
consideration non-U.S. citizens who receive a TNC.
The employer uses E-Verify to confirm the continuing
employment authorization of non-U.S. citizen workers
not subject to reverification.
In May 2013, an employer reinstated a number of
workers the employer had terminated improperly. IER’s
investigation determined that the employer attempted to
reverify these workers’ employment authorization based
on their citizenship status even though their employment
authorization was not subject to reverification.
The employer requires non-U.S. citizen workers to
provide additional documentation to demonstrate
work eligibility for E-Verify purposes because of their
citizenship or immigration status.
In February 2013, an employer agreed to pay $8,400 in
civil penalties after IER’s investigation concluded that
the employer required non-U.S. citizens to produce their
“green cards” for E-Verify purposes even though they had
already produced other acceptable documentation for the
I-9 process.
Examples of unlawful retaliation
(8 U.S.C. § 1324b(a)(5)):
The employer retaliates against a worker who asserts
rights protected under the INA’s anti-discrimination
provision.
In October 2017, a staffing company agreed to pay the
maximum civil penalty for retaliating against a worker.
IER’s investigation determined that the company removed
the worker from its pool of candidates for job placement
after the worker complained about the employer’s
request for a Permanent Resident Card during the
employment eligibility verification process.
The employer retaliates against a worker who files a
charge with IER.
In October 2015, an employer agreed to pay $1,750 in
civil penalties and $15,000 in back pay to a
work-authorized individual after IER’s investigation
determined that the employer barred the worker from
the company premises for filing a charge of discrimination
with IER.
Immigrant and Employee Rights Section (IER)
1-800-255-8155
www.justice.gov/ier
Calls can be anonymous and language services are
available.
TTY 1-800-237-2515