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Justice Department Issues Warning to Employers Regarding the Employment of Nonimmigrant Labor Contractors

ClkerFreeVectorImages [Public domain, CC0 1.0 (], via PixabayThe legal issues surrounding the employment of immigrants can be complicated, both for immigrants looking for work and for employers looking to hire people. The Immigration and Nationality Act (INA) prohibits discrimination in employment based on citizenship or national origin, with the exception of people who are not legally authorized to work in the U.S. 8 U.S.C. § 1324b(a). The Department of Justice (DOJ) enforces INA provisions dealing with discrimination and other unlawful employment practices through the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). In December 2015, an opinion letter from the OSC addressed a question regarding discriminatory practices that favor workers with nonimmigrant visas over U.S. citizen workers, and whether the INA distinguishes between employers and third-party contractors in this context.

Employers with four or more employees are covered by the INA’s prohibition on citizenship and national origin discrimination. This generally means that an employer cannot make a decision related to employment, such as whether to hire someone, lay someone off, or promote someone, based solely on whether or not they are a citizen or have a particular lawful immigration status. The INA’s anti-discrimination provisions are more limited in scope, however, than many other anti-discrimination laws.

With regard to national origin discrimination, the INA expressly states that it does not overlap with the prohibition on national origin discrimination found in the primary federal anti-discrimination statute, Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-2(a), 8 U.S.C. § 1324b(a)(2)(B). The provisions dealing with citizenship status only apply to “protected individuals,” who are defined to include U.S. citizens, recent lawful permanent residents, refugees, and asylees. 8 U.S.C. § 1324b(a)(3). The INA also states that it is not unlawful discrimination for an employer to favor a U.S. citizen over an equally qualified non-citizen. 8 U.S.C. § 1324b(a)(4).

The OSC’s letter addresses the question of whether an employer violates the INA by firing “U.S. workers” and replacing them with “contract workers with temporary work visas.” While it stops short of answering the question with a direct “yes,” the OSC notes that the INA’s anti-discrimination provisions are modeled on those of Title VII, and that the Office of the Chief Administrative Hearing Officer (OCAHO) has held that caselaw interpreting Title VII applies to INA discrimination claims. Sodhi v. Maricopa Co. Special Health Care Dist., 10 OCAHO No. 1127 (2008); McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) (individual discrimination); International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) (pattern or practice of discrimination).

The letter makes two other important observations about the INA. First, it states that an employer may be liable under the INA for the allegedly discriminatory employment actions of a third-party business, such as a staffing agency, if they are acting as “joint employers.” It also states that, unlike Title VII and other anti-discrimination laws, the INA only applies to deliberate or intentional discrimination, not neutral policies that have a discriminatory effect.

Samuel C. Berger, a business immigration attorney who practices in New York City and Northern New Jersey, represents individuals who plan on immigrating to the United States, immigrants who have already found a home here, and family members and employers petitioning on behalf of an immigrant. Contact us today online, at (201) 587-1500, or at (212) 380-8117 to schedule a confidential consultation with a knowledgeable and experienced advocate for immigrants’ rights.

More Blog Posts:

Optional Practical Training Program for Certain Students with F-1 Visas Extended for Three Months to May 2016, New York & New Jersey Immigration Lawyer Blog, February 11, 2016

Proposed Regulations Would Clarify Rules Regarding Employment-Based Immigrant Visas, New York & New Jersey Immigration Lawyer Blog, January 28, 2016

What New York and New Jersey Businesses Should Know About Temporary Work Visas, New York & New Jersey Immigration Lawyer Blog, October 22, 2015

Photo credit: ClkerFreeVectorImages [Public domain, CC0 1.0], via Pixabay.