Becoming Legal : A guide to the new immigration law in the workplace : The Anti-Discrimination Provisions

In writing the law, Congress was aware of concerns that some employers, for fear of sanctions, might tend not to employ, or even interview, persons of foreign appearance. In order to avoid this, the law expressly forbids employers, recruiters and referral agencies from discrimination based on national origin or citizenship status.

Under the immigration law, an employer may hire a citizen rather than a legal resident if the two are “equally qualified.” In other words, the employer can give preference to a citizen over a legal resident if both applicants are equally qualified to perform the job offered.

The national origin section protects citizens, legal residents, refugees, persons with political asylum, and those granted temporary resident status under the legalization program.

This provision of the law--Section 274B, or the Frank Amendment--applies to employers with more than three employees.

Title VII of the Civil Rights Act of 1964, which also prohibits discrimination based on national origin, covers employers of 15 persons or more.

The citizenship status section of the immigration law forbids discrimination against citizens and legal residents who express an intent to become citizens.

In order to be protected by this part of the law, people who have been legalized, persons with political asylum, refugees and legal residents should:

Inform the government of their intention to become U.S. citizens. They can do this by filing with the INS Form I-772 or an application to file a declaration of intention with the Naturalization Court, Form N-300.

File an application for citizenship within six months of elegibility. Long time legal residents have to apply for citizenship in order to enjoy the protection of this part of the law within six months.

Become citizens within two years after the application has been filed or show that the delay has resulted from backlogs in the INS.

How to file a complaint

Those who believe they have been victims of employment discrimination because of their national origin or citizenship status may file a complaint with the Special Counsel’s Office at the Department of Justice. The claim must be filed within 180 days of when the alleged discrimination occurred.

An allegation may be brought to the Special Counsel by any person alleging they have been adversely affected by such an employment practice.

Claims against employers of 15 or more employees can also be made with the Equal Employment Opportunity Commission.

Penalties

Anyone convicted of employment discrimination is subject to fines of $1,000 for each individual for the first offense and up to $2,000 for each subsequent violation. The employer may be further ordered to employ the person affected and to reimburse the employee for back pay.

The best way an employer can protect himself against discrimination claims is to comply with the requirements of the law: not to discriminate against any worker or prospective employee based on the employee’s national origin or citizenship status.

The INS advises employers to comply literally with the immigration law, by requiring every individual hired to establish his or her right to work. This not only avoids imposition of sanctions, but it also creates a defense against an unfair immigration-related employment practices charge.

The American Civil Liberties Union gives the following advice for employers: “Do not fire nor refuse to hire anybody simply because of a foreign appearance or accent, do not treat certain employees or prospective employees differently because of their ethnic origin, do not impose different or stricter requirements than those required by the Immigration Act and don’t give less preferential treatment to authorized foreigners than you give to citizens.”