Unlawful US Hiring Questions about Visa Status and Citizenship: Are Your Policies in Compliance? A 2022 Primer with Tips on Avoiding Discriminatory Practices

Recently, the US Department of Justice (DOJ) announced settlement agreements with 16 private employers to resolve allegations of hiring discrimination. The settlement agreements total nearly $1 million in civil penalties, but perhaps more significant is the reputational harm experienced by these distinguished companies, as well as the energy spent on settling, retooling, and retraining.

Background

DOJ began its investigation after a lawful permanent resident reported that a third-party job recruitment platform had advertised a job opportunity for US citizens only. The Immigration and Nationality Act prohibits certain types of employment discrimination based on citizenship status and national origin with respect to recruiting and hiring. The ensuing investigation by DOJ unearthed multiple allegedly discriminatory job announcements on the recruiter’s website and similar platforms run by colleges or universities.

In the settlements, the companies denied any liability, and some of the employers claimed the colleges operating the recruiting platform were responsible for the alleged discriminatory violations. In an opposing view, DOJ noted its stance that employers are liable if the job postings discriminate based on citizenship or immigration status.

In DOJ’s estimation, unlawful hiring discrimination based on citizenship or immigration status is a common problem in US higher education, denying employment to qualified college students and graduates. A spokesperson for DOJ stated as part of the settlement announcement that the government is “committed to enforcing the law to ensure that students and job applicants — including lawful permanent residents, U.S. nationals, asylees and refugees — are protected from unlawful discrimination.” Furthermore, the department will “hold employers accountable for using on-campus recruiting platforms in a discriminatory manner and work to provide relief for victims,” according to the statement.

Expanding the Definition of “Discrimination”

Historically, the government has stated that individuals protected against citizenship status discrimination include US citizens and nationals, certain lawful permanent residents, asylees, and refugees. According to DOJ guidance, while nonimmigrant visa holders and recipients of Deferred Action for Childhood Arrivals (DACA) are protected from national origin discrimination, they are not considered to be among the classes protected from citizenship status (alienage) discrimination. Importantly, DOJ also emphasized that employers cannot use the “temporary nature” of an employee’s work authorization to discriminate or subject the individual to unfair documentary practices in the Form I-9 (Employment Eligibility Verification) process.

Discrimination based on citizenship status is expressly prohibited by the Immigration and Nationality Act's anti-discrimination provision, 8 U.S.C. § 1324b. The law bars 1) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee; 2) national origin discrimination in hiring, firing, or recruitment or referral for a fee; 3) unfair documentary practices during the Form I-9 and E-Verify processes; and 4) retaliation or intimidation. The core federal legal provisions have been supplemented by regulations and agency guidance as well as interpretation by federal courts and administrative bodies.

Generally, DOJ permits an employer to ask job applicants a specific set of questions to help the employer inquire about a candidate’s employment eligibility and sponsorship. Those questions are:

1. Are you legally authorized to work in the United States?
2. Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)?

In recent years, some noncitizens have pushed to expand these concepts and definitions, alleging that companies are discriminating on the basis of alienage by refusing to recruit and hire individuals who have temporary employment authorization to work in the United States. The noncitizens point to legal prohibitions against discriminating on the basis of race or alienage in making and enforcing agreements, e.g., employment contracts, under 42 U.S.C. § 1981.

This stance raises questions as to whether employers are barred from selecting candidates for hire based on their legal immigration status. Employers must also navigate whether a candidate may need future sponsorship for work authorization (along with related issues such as costs for immigration fees and uncertainty about adjudication timelines and decisions). These issues directly impact the procedures an employer may use to screen applicants and underscore how important it is for employers to stay abreast of legal developments that may impact their organizations’ recruiting and hiring policies and procedures.

Best Practices for Employers

DOJ has made clear that its investigations continue into additional employers’ hiring activities. Further, unlike many DOJ investigations that mine copious volumes of records, these discrimination inquiries may initially just involve logging into hiring portals and identifying alleged discriminatory language.

Today’s climate is especially fraught with risk for employers. Therefore, we have identified these tips for employers to help avoid discriminatory recruitment practices:

1. Review your company’s anti-discrimination policy to ensure it is clearly defined and in compliance with this rapidly evolving area of the law. Pay attention to state and local laws, as the laws in certain jurisdictions may impose requirements that go beyond those contained in federal law. Importantly, as part of this process, evaluate your company’s diversity and inclusion policy to ensure that it supports a wide variety of candidates with diverse backgrounds.

2. Designate a leadership group or legal counsel to be responsible for oversight, monitoring, and compliance. Ask your legal advisor to review your training materials, standard operating procedures, and any scripts used by your recruitment and hiring professionals.

3. Ensure that recruiters understand limitations on asking candidates about their immigration status and employment authorization (including type and duration). Prepare a set of Frequently Asked Questions that instructs your recruiters on how to respond to inquiries. This will encourage consistent and compliant practices and will demonstrate good faith in the event of any legal challenges.

4. Train recruiting and hiring teams — and document that instruction. Conduct mandatory bi-annual or annual web-based refresher courses. DOJ’s Immigrant and Employee Rights section also conducts regular webinars in which it trains participants in avoiding employment discrimination on the basis of national origin and citizenship status, as well as employee rights during the Form I-9 and E-Verify processes.

5. Review current job postings for unduly restrictive language and consider including anti-discrimination policies in job announcements. Mayer Brown conducted an informal review of various online job announcements at esteemed companies and found several postings that should be improved in view of DOJ’s announcement. On the basis of those ads, except when legally required, we would encourage employers to avoid such language as:

• “Must be a US citizen”
• “Only native English speakers should apply”
• “US citizens only”
• “Requiring citizenship”
• “Limited to US citizens or legal permanent residents”
• “Only H-1Bs”
• “Limited to H-1Bs and students (OPT/CPT)”
• “US passport holders only”
• “Green card required”
• “US birth certificate required”

According to DOJ, an employer may state:

• The date by which an applicant must be eligible to begin work
• “Applicants must be currently authorized to work in the United States on a full-time basis”
• “The employer will not sponsor applicants for work visas”

6. Review and vet a job fair provider’s policies/language before participating in the fair, e.g., at a university. Individuals with expertise in Form I-9 and anti-discrimination regulations should review the hiring questionnaires and any automated systems (including drop-down menus) used by the job fair provider.

7. Before hiring an employee, do not request to see employment eligibility verification documents or require a candidate to complete the Form I-9. After the job candidate has accepted the offer, the employer may begin that process.

Takeaways

As reflected in the DOJ settlements, the Biden administration continues to focus on initiatives and investigations to address alleged discriminatory policies and practices. No employer is immune from the government’s renewed scrutiny.

When hiring a new worker, companies are required to verify the employee’s identity and authorization to work, not the employee’s immigration status. Further, employers must accept documentation that reasonably appears to be genuine and to relate to the individual and cannot reject documents because of a future expiration date.

US employers should plan accordingly and review their human resources policies and practices across worksite locations, business divisions, and recruitment partners. It is necessary to prioritize strategies around hiring, retaining, and developing key employees and to invest in improving internal investigations and crisis management.