In the United States, employment discrimination based on national origin and citizenship status is strictly prohibited by the Immigration and Nationality Act (INA). The Department of Justice’s Immigrant and Employee Rights (IER) section plays a crucial role in monitoring and enforcing these regulations. This blog post explores recent allegations of discrimination by a company under investigation by the IER.

There are very limited situations where a “U.S. citizen only” requirement is permissible. See, for example, CIA Requirements – CIA. In circumstances where we absolutely know the position requires U.S. citizenship, job postings could say something like:

“You must be a U.S. citizen to be hired for this position. If you are in the process of becoming a U.S. citizen, you can submit your resume as soon as you are awarded citizenship, but not before.” We do not help individuals apply for U.S. citizenship.

However, the general default is “U.S. person” as described below. If a job requires a security clearance and/or access to CUI data, you might just state that in the job posting. If U.S. persons apply and can’t show the appropriate level of clearance to meet the job requirements, they can be disqualified on that point as opposed to their citizenship/immigration status.

The IER monitors, among other things, employment discrimination based on U.S. citizen only practices. IER recently filed a complaint against a U.S. Company claiming that it improperly and broadly screened U.S. applicants out of the pool of potentially qualified applicants. Civil Rights Division | IER Cases And Matters (justice.gov)

IER claims that Company is engaging in discriminatory hiring practices that disadvantage asylees and refugees seeking employment within the company. IER further accuses the Company of violating the INA by exhibiting bias against individuals based on their citizenship status during the hiring process.

The allegations in the complaint date back from September 2018 to May 2022 and claim that the Company systematically discriminated against asylees and refugees at various stages of the hiring process, including recruitment, screening, and selection. This alleged discrimination resulted in a significantly reduced chance for asylees and refugees to be fairly considered or hired for positions at Company.

The DOJ’s complaint points out several instances where Company’s actions may have discouraged asylees and refugees from applying for jobs. In various public statements, including social media posts and online video presentations, Company officials allegedly made misleading statements that only U.S. citizens and lawful permanent residents could be hired due to export control regulations. Furthermore, the complaint asserts that Company’s online recruiting communications repeatedly conveyed the same notion, thereby creating an environment where qualified asylees and refugees might have been dissuaded from pursuing employment opportunities.

The complaint also outlines Company’s hiring records, which reportedly showed a pattern of rejecting applicants who identified as asylees or refugees due to their citizenship or immigration status. IER is very sensitive to U.S. citizen only requirements and, as stated above, it might be best to just post clear job requirements and not restrict positions beyond the U.S. person requirement. 

For export control purposes, and for IER compliance, the company should consider broadening the recruitment to “U.S. person.” This is because the International Traffic in Arms Regulation (ITAR) (22 C.F.R. Parts 120-130) restricts access to certain controlled technical data and hardware to “U.S. persons,” not just U.S. citizens. 

Specifically, ITAR § 120.62 defines a “U.S. person” as “a person who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3).” For practical purposes, this means any person who is:

1. A U.S. citizen;

2. A U.S. permanent resident alien (“green card” holder);

3. Lawfully admitted to the United States as a refugee under certain provisions of U.S. law; or

4. Granted asylum in the United States under certain provisions of U.S. law.

Individuals that are not lawfully admitted to the United States or admitted under most visas are not “U.S. persons” for purposes of the ITAR.

All “U.S. persons” may be granted access to technical data that is controlled under the ITAR without preapproval from the U.S. Department of State’s Directorate of Defense Trade Controls (DDTC), which administers the ITAR. 

Brief Overview of Anti-Discrimination Protections for Asylees, Refugees, and Lawful Permanent Residents in Employment

Asylees and refugees, individuals who have sought refuge in the United States due to a legitimate fear of persecution in their home countries, are granted asylum or refugee status upon approval by the U.S. government. This status grants them the right to reside and work indefinitely within the United States, as established in 8 U.S.C. § 1158(c)(l). Similarly, lawful permanent residents, commonly known as “green card” holders, possess the permanent right to live and work in the country under 8 U.S.C. § 1101(a)(20).

Recognizing the importance of preventing discrimination based on citizenship status and national origin, Congress made amendments to the INA in 1986. This amendment, found in 8 U.S.C. § 1324b(a)(l)(B), explicitly prohibits employment discrimination with regard to hiring practices, encompassing citizenship status and national origin.

The scope of this protection extends to a diverse range of individuals. United States citizens, nationals, asylees, refugees, and specific lawful permanent residents—both those who possess these statuses and those who are perceived to hold them—are shielded from hiring discrimination based on citizenship status, except when required to comply with specific laws, regulations, executive orders, government contracts, or determinations by the Attorney General, as outlined in § 1324b(a)(2)(C). This safeguard ensures that employers cannot discourage, unfairly evaluate, or reject job applicants solely due to their citizenship or immigration status. Employers must uphold the principle of providing equal, fair, and impartial evaluation to all applicants, regardless of their citizenship or immigration status.

Anti-discrimination requirements within the United States emphasize the protection of the rights of asylees, refugees, lawful permanent residents, and citizens, ensuring that all individuals are treated equally in employment opportunities, free from bias based on their citizenship or immigration status. These measures extend across all stages of the hiring process, upholding the principles of fairness, impartiality, and equal consideration for all.