The Immigration Reform and Control Act (IRCA) makes it illegal for an employer with at least four employees to discriminate in hiring and firing workers because of their citizenship status. IRCA also protects employees from discrimination based on national origin;national origin discrimination is also illegal under Title VII of the Civil Rights Act, if your employer has 15 or more employees. (For information on national origin discrimination, see National Origin Discrimination in the Workplace.)
What Is Citizenship Discrimination?
Employers may not discriminate against employee on the basis of citizenship status unless a federal law explicitly allows them to do so because U.S. citizenship has been declared an essential requirement of the job. This prohibition applies to all phases of the employment relaitonship, including hiring, promotion, pay, job assignment, discipline, and termination. For example, an employer may not refuse to hire a worker because the workers' authorization document has a future expiration date.
Employers also may not retaliate against workers for asserting their rights under IRCA (for example, by filing a complaint of citizenship discrimination).
If two applicants are equally qualified for a position, an employer may give preference to a citizen or national of the United States. However, an employer may not institute a blanket policy of preferring U.S. citizens for all job openings.
- fails to apply for naturalization within six months of the date he or she first became eligible to apply, or
- has applied on a timely basis, but has not been naturalized as a citizen within two years after the date of the application (excluding the time government agencies spend processing the application), unless the alien can show that he or she is actively pursuing naturalization.
Enforcing Your Rights
If a prospective or current employer violates your rights under IRCA, you have 180 days from the date of the violation to file a complaint with the Office of the Special Counsel for Unfair Immigration-Related Employment Practices. The most common violation of the antidiscrimination laws protecting immigrants occurs when employers refuse to hire someone because they suspect—incorrectly—that the person is not legally authorized to work in the United States.
To begin the complaint process, you can write a letter summarizing the situation and send it to the Special Counsel's office; you can find out what to include in your letter and where to send it at the Office's website, www.justice.gov/crt/about/osc/.
The special counsel has 120 days from the day it receives your complaint to investigate and decide whether it will pursue a charge against the employer before an administrative law judge. If the special counsel does not bring a charge against the employer within the 120 days or notifies you that it has not found sufficient evidence to support your charges, you have the right to plead your case directly before an administrative law judge. But you must request your hearing within 90 days of the end of the original 120-day period allowed for the special counsel to take action.
Immigration law is a world all its own. You will probably need the help of an attorney with experience in immigration law if you decide to pursue an antidiscrimination complaint after the special counsel has failed to do so.