Immigration discrimination refers to unfair or prejudiced treatment of individuals based on their immigration status or national origin or protected status. This could manifest in different scenarios, such as employment, housing, and access to services.
However, in the employment context, it is illegal under the Immigration and Nationality Act (INA) to discriminate against employees or job applicants based on their national origin or citizenship status. Employers must understand the nature of these anti-discrimination laws to ensure they provide a fair and equitable workplace.
What Is the Immigration and Nationality Act?
The Immigration and Nationality Act is a federal law that sets out the rules and procedures for immigration to the United States. The INA also includes provisions that prohibit employment discrimination based on immigration or citizenship status, national origin, and unfair documentary practices during the employment eligibility verification process.
This means that employers cannot refuse to hire, fire, or refuse to provide equal opportunities based on these characteristics or practices.
Here are some examples of the different types of discrimination prohibited under the INA:
- Discrimination Based on Immigration or Citizenship Status: Let’s say a company refuses to hire an individual because they are on an H-1B visa and the company prefers U.S. citizens. This could violate the INA as it discriminates against prospective employees based on their citizenship status.
- National Origin Discrimination: Suppose an employer decides not to hire a qualified candidate simply because the candidate was born in Mexico and the employer has biases against people from that country. This would constitute discrimination based on national origin, which the INA prohibits.
- Unfair Documentary Practices: This could occur when an employer requests more or different documents than are required to verify employment eligibility, rejects reasonably genuine-looking documents, or specifies certain documents over others. For example, an employer may insist that a worker who sounds foreign to them must present a “green card” even though that worker is a U.S. citizen and presents a U.S. passport. This discriminatory practice related to employment eligibility verification is unlawful under the INA.
Each of these scenarios represents a different type of discrimination that is prohibited under the INA. If an individual believes they have been the victim of these types of discrimination, they can file a complaint with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), part of the U.S. Department of Justice.
What Is Prohibited Under the Immigration and Nationality Act?
The INA prohibits employers from discriminating against individuals based on their national origin or citizenship status. National origin discrimination involves treating people unfavorably because they are from a particular country or part of the world, because of their ethnicity or accent, or because they appear to be of a certain ethnic background.
Citizenship status discrimination involves treating individuals unfairly because of their citizenship or immigration status. Furthermore, employers are also prohibited from engaging in unfair documentary practices during the employment eligibility verification or I-9 process.
An example of unfair documentary practices could occur when verifying a potential employee’s eligibility to work in the United States, which involves completing an I-9 form.
Suppose an employer insists that a prospective employee show a specific document, like a U.S. passport, to establish their identity and employment authorization, even though the employee is legally allowed to choose which acceptable document(s) to show from Lists A, B, or C of the I-9 form. For instance, the employee could present a driver’s license and unrestricted Social Security card, which are perfectly valid under the guidelines.
Yet, the employer refuses to accept these documents and insists on seeing a U.S. passport or a Green Card, even though the employee has already proven their identity and employment eligibility. This insistence on specific documents (when others are legally acceptable) can be classified as an unfair documentary practice, which the INA prohibits. Such practices can lead to significant penalties for the employer if found to be in violation.
What Can Employers Do to Prevent Discrimination?
Employers can ensure they do not engage in immigration discrimination by implementing comprehensive anti-discrimination policies and practices. They should treat all applicants and employees equally during the hiring, firing, recruiting, or referral processes.
Employers should not request more or different documents than are required to verify employment eligibility, reject reasonably genuine-looking documents, or treat groups of applicants differently based on their immigration or citizenship status or national origin. Regular training should also be provided to human resources and management staff on these issues to ensure they understand and comply with these laws.
Do Immigrant Workers Have Rights?
Yes, immigrant workers have rights under U.S. labor and employment laws. Regardless of their immigration status, they are protected under anti-discrimination laws, have the right to receive at least the federal minimum wage and overtime and work in a safe and healthy environment.
These rights apply whether the worker is a legal immigrant with an employment visa or an undocumented worker. Immigrant workers must understand these rights to protect themselves from exploitation and unfair treatment.
Here are a few examples of situations where immigrant workers’ rights may not be met:
- Wage Theft: An employer may take advantage of an immigrant worker’s unfamiliarity with U.S. labor laws or fear of deportation by paying less than the minimum wage or not paying for overtime. For instance, a restaurant owner may pay a dishwasher who is an immigrant far less than minimum wage, citing reasons such as their immigration status or lack of work permit.
- Unsafe Working Conditions: Immigrant workers may be subjected to unsafe working conditions, especially in industries like construction, agriculture, or manufacturing. For example, a construction company might not provide adequate safety training or equipment to its immigrant workers, exposing them to a high risk of accidents and injuries.
- Discrimination and Harassment: An immigrant worker might face discrimination or harassment based on their national origin or immigration status. An example could be a supervisor who consistently passes over a worker for promotions because they are from a different country or coworkers who subject an immigrant worker to derogatory comments or jokes about their nationality.
- Retaliation: Some employers may retaliate against immigrant workers who assert their rights. For example, if an immigrant worker complains about not receiving minimum wage, the employer might respond by threatening to report the worker’s immigration status to authorities.
- Exploitation of Undocumented Workers: Undocumented workers are particularly vulnerable to exploitation because they may fear that complaining about working conditions could lead to their deportation. They may be made to work extremely long hours, under dangerous conditions, and for less than minimum wage.
In each of these situations, the rights of immigrant workers are being violated. Despite the challenging circumstances, immigrant workers have legal protections and can seek help from legal professionals or workers’ rights organizations.
Do I Need a Lawyer If I Have Immigrant Discrimination Issues?
If you believe you have been the victim of immigration discrimination, it might be helpful to consult with an attorney. An experienced immigration lawyer can provide valuable legal advice, explain your rights, and guide you through the process of making a claim. They can also represent you in any legal proceedings or negotiations.
At LegalMatch, you can find a qualified attorney who has experience in immigration law and who can provide you with the assistance you need.
