Nonimmigrant workers in the United States have employment rights, despite their temporary immigration status. Under federal law, it is illegal to discriminate against any worker, regardless of immigration status. 8 U.S.C. § 1324b of the Immigration and Nationality Act (INA) prohibits discrimination based on: (i) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee; (ii) national origin discrimination in hiring, firing, or recruitment or referral for a fee; (iii) unfair documentary practices during the employment eligibility verification, Form I-9 and E-Verify, and (iv) retaliation or intimidation.
In the United States, a nonimmigrant worker is a foreign-born person who is not a permanent resident and is not a U.S. citizen. A citizen of a foreign country who wishes to work in the United States must first obtain a visa, either a nonimmigrant visa for temporary stay, or an immigrant visa for permanent residence. Nonimmigrant workers come to the United States lawfully on temporary worker classifications. Temporary worker visas are for persons who want to enter the United States for employment lasting a fixed period of time, and not considered permanent or indefinite. For more information on the types of temporary worker visas, visit the USCIS pages on Temporary/Nonimigrant Workers and Working in the US.
Each of these visas requires the prospective employer to first file a petition with U.S. Citizenship and Immigration Services (USCIS). An approved petition is required to apply for a work visa. Some temporary worker visa categories require your prospective employer to obtain a labor certification or other approval from the Department of Labor on your behalf before filing the Petition for a Nonimmigrant Worker with USCIS.
Foreign labor certification programs permit U.S. employers to hire foreign workers on a temporary or permanent basis to fill jobs essential to the U.S. economy. To obtain certification, one must demonstrate that there are insufficient qualified U.S. workers available and willing to perform the work at wages that meet or exceed the prevailing wage paid for that occupation in the area of intended employment. Labor certification programs are designed to assure that the admission of foreign workers into the United States on a permanent or temporary basis will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.
4. What does the Anti-Discrimination provision of the Immigration and Nationality Act (INA) protect against?
Under 8 U.S.C. § 1324b, the Immigration and Nationality Act prohibits: (i) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee; (ii) national origin discrimination in hiring, firing, or recruitment or referral for a fee; (iii) unfair documentary practices during the employment eligibility verification, Form I-9 and E-Verify, and (iv) retaliation or intimidation. Details about the law prohibiting unfair immigration-related employment practices can be found here.
Citizenship status includes a person’s immigration status. U.S. Citizens, U.S. Nationals, refugees, asylees, and recent lawful permanent residents (LPRs) are protected from citizenship status discrimination. There are two exceptions to this: (i) lawful permanent residents who do not apply for naturalization within six months of eligibility by virtue of their period of residency are not protected; and (ii) an employer may restrict hiring to U.S. citizen only if a law, regulation, executive order, or government contract requires the employer to do so. Further explanation of the types of discrimination can be found here.
6. Who enforces the Anti-Discrimination Provision of the Immigration and Nationality Act? How can I report such an incident?
The Immigrant and Employee Rights Section (IER) of the Civil Rights Division under the Department of Justice, enforces the anti-discrimination provision of the INA. Individuals who believe they have been discriminated against may file charges with IER and may be entitled to receive back pay and reinstatement, among other remedies. If you want to report one of these forms of discrimination protected under the act, click here to file a charge or call IER’s Worker Hotline at 1-800-255-7688. If you are an employer with questions about the anti-discrimination provision of the INA, call IER’s Employer Hotline at 1-800-255-8155. More information on filing a charge with the IER about discrimination electronically can be found at: https://www.justice.gov/crt/filing-charge. Other ways of submitting a charge form is through email, mail or fax the IER charge form to:
Immigrant and Employee Rights Section
Civil Rights Division
U.S. Department of Justice
IER’s charge form is available in several languages. Charges should be filed within 180 days of the alleged discrimination or retaliation.
After IER receives what it deems to be a charge, IER will start its investigation. If IER has not filed a complaint with an Administrative Law Judge (ALJ) within 120 days of receiving a charge, it will send a letter notifying the injured party or representative of their right to file an administrative complaint against the respondent, and indicating whether IER is continuing its investigation. IER will also notify the respondent of its decision to continue an investigation. Once a case is filed, pre-trial matters like discovery, depositions, and pleadings are handled. ALJ decisions are directly appealable to the federal circuit courts of appeals. Settlements or successful adjudications may result in civil penalty assessments, back pay awards, hiring orders and imposition of injunctive relief, where applicable, to end discriminatory practices.
IER offers two platforms for public education and outreach which are: (1) IER’s free hotline with multilingual staff, including attorney’s, ready to assist workers, employees, and the public who contact IER; and (2) IER’s free webinars which are hosted regularly to educate employers, workers or other members of the public about the protections and obligations under the anti-discrimination provision.
IER’s hotlines provide workers and employers with an opportunity to receive information about the anti-discrimination provision of the INA and to work directly with IER’s staff to resolve potential immigration-related employment disputes informally and quickly without contested litigation. Workers and employers are encouraged to call the respective hotlines above to seek assistance with immigration-related employment issues. Please note that IER cannot provide legal advice or individual legal representation. Language services are available and free of charge.
Regularly occurring webinars include webinars targeted to: (1) employers, (2) workers and their advocates, (3) Spanish-speaking audiences, and (4) individuals wishing to better understand workers’ rights in the I-9 and E-Verify context presented by IER jointly with U.S. Citizenship and Immigration Services. Visit http://www.justice.gov/crt/about/osc/webinars.php to register for one of IER’s free webinars. If you are an organization seeking to educate your staff or your community about the anti-discrimination provision, you may also inquire about scheduling a customized webinar to suit your needs by emailing: IER@usdoj.gov.
The U.S. Department of Labor’s Wage and Hour Division (WHD) is responsible for enforcing some of the nation’s most comprehensive federal labor laws on topics including the minimum wage, overtime pay, recordkeeping, child labor, family and medical leave, migrant and seasonal worker protections, lie detector tests, worker protections in certain temporary guest worker programs, and the prevailing wages for government-funded service and construction contracts. Collectively, these laws cover most private, state, and local government employment, and protect over 143 million workers in more than 9.8 million establishments nationwide. WHD is committed to ensuring that workers in this country are paid properly and for all the hours they work, regardless of immigration status.
Information on filing a complaint with the WHD can be found on the DOL’sHow To File A Complaint page. You can also contact them at 1-866-487-9243 or visit www.dol.gov/whd, where you will be directed to the nearest WHD office for assistance. There are more than 200 WHD offices throughout the country with trained professionals to assist you.