Employers Warned Against Citizenship and National Origin Bias

Employers’ obligations to avoid citizenship and national origin discrimination when hiring and workforce planning have become even more paramount given the increased attention to anti-discrimination laws brought on by the Trump administration. 

Common violations of the anti-discrimination provisions of the Immigration and Nationality Act include asking for U.S. citizens only in job postings, preferring foreign guest workers when hiring, or disfavoring candidates from specific countries.   

Sometimes, well-meaning policies or business-driven decisions can expose companies to penalties and other sanctions, said Priscilla Muhlenkamp, managing partner of the Washington, D.C., office of Fragomen, speaking at SHRM25 in San Diego. 

Both the U.S. Department of Justice’s Immigrant and Employee Rights Section and the U.S. Equal Employment Opportunity Commission (EEOC) have intensified scrutiny on employers’ hiring practices as well as compliance with Form I-9 employment eligibility verification requirements. A California recruitment firm in June agreed to pay nearly $72,000 to resolve allegations by the Immigrant and Employee Rights Section that it violated the law by placing numerous job ads stating that certain positions were open only to applicants with H-1B visas.  

Acting EEOC Chair Andrea Lucas recently said that the agency has already recovered millions of dollars in national origin discrimination cases and is working through an additional caseload, primarily seeing preferences for Hispanic workers in certain industries such as landscaping and construction or H-1B workers in technology roles. 

Be Aware of Ground Rules

Muhlenkamp explained that employers generally can’t have a policy of only hiring U.S. citizens, except in rare cases when it may be required by law, and employers are prohibited from treating people differently in hiring, firing, or recruitment because of their place of birth, native language, accent, or any other national origin indicator. 

The Immigration and Nationality Act prohibits national origin discrimination against any worker with permission to work in the U.S., while Title VII of the Civil Rights Act prohibits national origin discrimination against all workers, regardless of their work authorization status, Muhlenkamp said. 

“Unfair documentary practices is the most common violation in this area,” she said. “Employers can unwittingly stray into discrimination by requesting more or unnecessary documents than are required by law to verify a worker’s permission to work in the United States.” 

Employers must not reject reasonably genuine-looking documents, specify which documents to present, or reverify employees when it is not necessary, she said. “This type of discrimination typically occurs in the Form I-9 and E-Verify processes,” she said. “Relying on noncompliant electronic I-9 software is not a defense.” 

Related Article: Prepare for More I-9 Audits Under Trump Administration     

Examples on Sponsorship, Students, and More

Using Cyberdyne Systems, the notorious fictional corporation from “The Terminator” movies, as a hypothetical, Muhlenkamp presented the following examples and what action an employer could take: 

Cyberdyne decides to no longer offer sponsorship to foreign nationals due to cost. How should it proceed?

Advertising for U.S. workers only would not be the best course of action, she said. Instead, the safest bet is to ask if workers require employment sponsorship, and if they do, let them know that the role is a nonsponsored position. “This is where execution matters,” she said. “It’s better to let applicants know your policy and allow them to withdraw.”  

Cyberdyne decides to screen out students with F-1 visas because they want to scale back internships and don’t want to sponsor foreign nationals for future roles. How should it proceed?

Simply not accepting F-1 students for internships could get the company in trouble because an F-1 student may have valid work authorization beyond the months of a summer internship, Muhlenkamp said. Asking the university career office to screen out F-1 students on your behalf is also problematic for the same reason. “Even if the school does the screening, the employer can still get into trouble,” she said.  

Muhlenkamp recommended treating internships as entry-level jobs and screening out those who will require H-1B sponsorship in the future. “If internships are a pipeline for future talent development, they will need work authorization in the future,” she said. “That’s a valid reason to turn F-1 students away. Have a written policy.”  

Cyberdyne is concerned about workers with at-risk work authorization as humanitarian parole programs are canceled by the Trump administration. How should it proceed?

“Workers are being asked to self-deport,” she said. “This is treacherous territory because there is very little guidance for employers.” 

It’s always good practice to review I-9s and develop contingency plans, she said. Employers should identify affected employees, verify their current work authorization status, and potentially terminate employment if authorization is revoked and no alternative is available. Consulting with immigration counsel is highly recommended to navigate this complex situation. 

Specialty Credential: U.S. Employment Immigration

Anti-Discrimination Best Practices 

Muhlenkamp listed some best practices for employers: 

• Assess the reasoning behind hiring or workforce planning goals. “Why is leadership asking you to reduce foreign national hiring?” she asked. “Typically, it is about not wanting to have to deal with the costs of sponsorship. In that case, your actions need to be narrowly tailored to that goal and avoid casting a wide net.”  
• Assess whether the goal is fully achievable and be prepared to counsel leadership on risks. 
• Ensure that job requirements are based on business needs and not on qualities or characteristics of applicants such as citizenship or national origin.  
• Remember that in this context, efficiency is not the best solution. “You need to think about mechanically going through the process and not collapsing the steps,” she said. “That will get you into trouble. When it comes to I-9 compliance, you must be process-driven.”