Discrimination on Immigration Issues

According to law, immigrants are persons lawfully admitted for permanent residence in the U.S. They arrive with permanent visas that have been applied for and issued abroad, or they adjust their status from temporary visitor to permanent resident. Discrimination based on immigration or citizenship status is treating individuals differently in their employment because of their citizenship or immigration status.

Under the Immigration Reform and Control Act (IRCA), employers with four or more employees are prohibited from discriminating on the basis of citizenship status, which occurs when adverse employment decisions are made based upon an individual's real or perceived citizenship or immigration status.

Examples of citizenship status discrimination include employers who hire only U.S. citizens, or U.S. citizens and green card holders; employers who refuse to hire those granted asylum in the U.S. or other refugees, because their employment authorization documents contain expiration dates; and employers who prefer to employ unauthorized workers or temporary visa holders, rather than U.S. citizens and other workers with employment authorization.

Also, it is illegal for employers to recruit, hire, or continue to employ illegal immigrants who are ineligible to work in the United States. The IRCA was administered and enforced by the Immigration and Naturalization Service (INS), but is now handled by the new agency, the U.S. Citizenship and Immigration Services (USCIS).

The Office of Special Counsel for Immigration-Related Unfair Employment Practices enforces the statute prohibiting employment discrimination under IRCA. It has the responsibility for handling complaints, against all employers, alleging citizenship status discrimination, document abuse, retaliation, and national origin discrimination, if the employer has four to 14 employees. The Equal Employment Opportunity Commission handles national origin discrimination complaints against employers with 15 or more employees.

Penalties

Back pay (for lost wages), instatement or reinstatement, etc., may be awarded to victims of unlawful discrimination.

Penalties for discrimination range between $275 and $2,200 for each victim for the first offense, $2,200 to $5,500 for the second offense, and $3,300 to $11,000 for the third offense. Fines for document abuse range from $110 to $1,100 for each victim.

U.S. citizens and work-authorized immigrants who are victims of workplace discrimination based upon immigration status, national origin discrimination, or document abuse may file complaints with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) at the U.S. Department of Justice.