The Immigration and Nationality Act (INA) was the first law that committed the United States to accept immigrants of all nationalities on a roughly equal basis.
In an employment law context, the INA requires employers only hire employees who have proper work authorization. INA also contains an Immigrant and Employee Rights Section (IER). This section enforces anti-discrimination provisions of the INA and protects immigrant employees from discrimination.
What Does the Immigrant and Employee Rights Section of the INA Prohibit?
The Immigrant and Employee (IER) Section of the INA prohibits the following:
- Citizenship status discrimination in hiring, firing, or recruitment or referral for a fee by employers with 4 or more employees. In this way, employers cannot treat individuals differently based on citizenship or their immigration status. The one exception are permanent residents who do not apply for naturalization within six months of eligibility.
- National origin discrimination in hiring, firing, or recruitment or referral for a fee, by employers with more than three and fewer than 15 employees. It is against the law for employers to treat employees differently because of their place of birth, country of origin, ancestry, native language, accent, or because they are perceived as looking or sounding “foreign.” Employers that have more than 15 employees are governed by Title VII enforced by the Equal Employment Opportunity Commission (EEOC).
- Unfair documentary practices during the employment eligibility verification of employees. Employers are prohibited from requesting more or different documents than are required to verify employment eligibility or specifying certain documents over others with the purpose of trying to discriminate against a group of people or individual based on citizenship status or national origin.
- Retaliation or intimidation. An individual who files a discrimination claim with IER, who cooperates with an existing IER investigation, or who contests actions that may constitute unfair practices or discrimination are protected from intimidation, threats, coercion and retaliation.
How Do I File a Charge of Discrimination?
Employees who believe they have experienced unlawful discrimination should call the immigrant and Employee Rights Section’s toll-free Hotline at (800) 225-7688. IER staff members can help employees contact their employers and explain to employers’ proper procedures. They can also provide victims of discrimination charge forms.
IER employees may also investigate a victim’s discrimination claim. The investigation typically takes no longer than 7 months from the date IER receives a formal charge of discrimination.
Charges can also be filed electronically, or by mail, fax, or email. For more information, review the U.S. Department of Justice website.
What are the Consequences of Discrimination?
Victims of discrimination who report the discrimination to IER may obtain various types of relief, including job relief/reinstatement and back pay.
Employers who violate anti-discrimination provisions can suffer the following penalties:
- Employer may be required to reinstate the employee and provide back-pay.
- If the matter is litigated in civil court, the employer may have to pay attorney’s fees as well as civil monetary damages if found guilty of discrimination.
Are There Any Other Anti-Discrimination Protections for Immigrants?
In addition to the INA, Title VII of the Civil Rights Act makes it illegal for employers to discriminate based on one’s national origin. Whereas the INA only applies to employees with fewer than 15 employees, Title VII covers employers with 15 or more employees.
It forbids discrimination based on a person’s place of birth, culture, ancestry, linguistic characteristics or accent. Further, while INA’s prohibition against national origin discrimination is limited to intentional discriminatory acts, Title VII covers intentional as well as unintentional discrimination across a broader set of employment decisions.
Should I Consult an Attorney?
If you believe you have been improperly discriminated against due to your immigrant status, contact an employment law lawyer. A skilled attorney can help you evaluate whether you have a valid case and your chances of prevailing. A lawyer can also help you gather relevant evidence to support your claim and make court appearances on your behalf.