HR managers and staff may be uncertain of which type of immigration-related questions they are legally permitted to ask job candidates in light of recent policy priorities set by the Trump administration supporting U.S. workers.
In furtherance of Trump’s “Buy American, Hire American” Executive Order, government agencies have launched various initiatives aimed at greater enforcement against employers who discriminate against American workers. In May, the Department of Justice (DOJ) and U.S. Citizenship and Immigration Services (USCIS) entered into a formal memorandum of understanding to share information with each other about employers. This memorandum is for the purpose of investigating and prosecuting companies that use employment-based visa programs, such as the H-1B category and others, to discriminate against U.S. workers in favor of foreign workers. USCIS has also stepped up on-site employer visits and opened a hotline for individuals to report H-1B and H-2B visa fraud.
The policies encourage companies to hire American workers and remind them not to discriminate against U.S. workers. However, employers must also be mindful of discriminating against job candidates who are foreign nationals. While it is against the law to knowingly hire someone who is not authorized to work in the U.S., it is also unlawful to discriminate on the basis of citizenship, national origin, race or religion. Companies may be sued or face Equal Employment Opportunity Commission (EEOC) complaints if they ask questions that violate protected categories. The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an employer to discriminate with respect to hiring, firing, or recruitment or referral for a fee, on the basis of an individual’s citizenship or immigration status. The law prohibits employers from hiring only U.S. citizens or lawful permanent residents unless required to do so by law, regulation or government contract. Furthermore, the DOJ Immigrant and Employee Rights Section (IER, formerly the Office of Special Counsel) cautions against asking detailed questions about job applicants’ specific immigration or citizenship status, since it could deter protected individuals (U.S. citizens, certain lawful permanent residents, temporary residents, refugees, and asylees) from applying. Additionally, such questions may lead individuals who are rejected for a job to allege that they were not hired because of their national origin.
Below are some common do’s and don’ts in the hiring process:
BAL Analysis: Employers should be aware of their obligations and restrictions in the current enforcement environment. Companies are encouraged to conduct regular reviews of their Form I-9 procedures, as well as their hiring practices, to ensure that they are in compliance with the law. BAL can assist in the review and internal auditing process.
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