What Is the Immigration and Nationality Act?
The Immigration and Nationality Act is a federal law that sets out the rules and procedures for immigration to the United States. The INA also includes provisions that prohibit employment discrimination based on immigration or citizenship status, national origin, and unfair documentary practices during the employment eligibility verification process.
This means that employers cannot refuse to hire, fire, or refuse to provide equal opportunities based on these characteristics or practices.
Here are some examples of the different types of discrimination prohibited under the INA:
- Discrimination Based on Immigration or Citizenship Status: Let’s say a company refuses to hire an individual because they are on an H-1B visa and the company prefers U.S. citizens.
- This could violate the INA as it discriminates against prospective employees based on their citizenship status.
- National Origin Discrimination: Suppose an employer decides not to hire a qualified candidate simply because the candidate was born in Mexico and the employer has biases against people from that country.
- This would constitute discrimination based on national origin, which the INA prohibits.
- Unfair Documentary Practices: This could occur when an employer requests more or different documents than are required to verify employment eligibility, rejects reasonably genuine-looking documents, or specifies certain documents over others.
- For example, an employer may insist that a worker who sounds foreign to them must present a “green card” even though that worker is a U.S. citizen and presents a U.S. passport.
- This discriminatory practice related to employment eligibility verification is unlawful under the INA.
Each of these scenarios represents a different type of discrimination that is prohibited under the INA. If an individual believes they have been the victim of these types of discrimination, they can file a complaint with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), part of the U.S. Department of Justice.
What Is Prohibited Under the Immigration and Nationality Act?
The INA prohibits employers from discriminating against individuals based on their national origin or citizenship status. National origin discrimination involves treating people unfavorably because they are from a particular country or part of the world, because of their ethnicity or accent, or because they appear to be of a certain ethnic background.
Citizenship status discrimination involves treating individuals unfairly because of their citizenship or immigration status. Furthermore, employers are also prohibited from engaging in unfair documentary practices during the employment eligibility verification or I-9 process.
An example of unfair documentary practices could occur when verifying a potential employee’s eligibility to work in the United States, which involves completing an I-9 form.
Suppose an employer insists that a prospective employee show a specific document, like a U.S. passport, to establish their identity and employment authorization, even though the employee is legally allowed to choose which acceptable document(s) to show from Lists A, B, or C of the I-9 form. For instance, the employee could present a driver’s license and unrestricted Social Security card, which are perfectly valid under the guidelines.
Yet, the employer refuses to accept these documents and insists on seeing a U.S. passport or a Green Card, even though the employee has already proven their identity and employment eligibility. This insistence on specific documents (when others are legally acceptable) can be classified as an unfair documentary practice, which the INA prohibits. Such practices can lead to significant penalties for the employer if found to be in violation.
What Can Employers Do to Prevent Discrimination?
Employers can ensure they do not engage in immigration discrimination by implementing comprehensive anti-discrimination policies and practices. They should treat all applicants and employees equally during the hiring, firing, recruiting, or referral processes.
Employers should not request more or different documents than are required to verify employment eligibility, reject reasonably genuine-looking documents, or treat groups of applicants differently based on their immigration or citizenship status or national origin. Regular training should also be provided to human resources and management staff on these issues to ensure they understand and comply with these laws.
Can Employment Issues Affect Immigration Issues?
Yes, immigration issues can be affected by issues in the workplace. As previously discussed, employment issues can arise related to an individual’s immigration status, such as workplace discrimination and immigration discrimination.
Workplace discrimination is prejudicial or unfair treatment in the workplace based on the worker’s immigration status, national origin, or protected status. Immigration discrimination, as noted above, is unfair treatment based upon the worker’s citizenship or immigration status.
There are numerous immigration, employment, and discrimination laws that may apply in employment and immigrant discrimination cases. There are also executive orders, policies and laws that may apply to these types of cases.
Recent executive orders that may apply to cases involving employment and immigration issues include:
- Executive Order Realigning the United States Refugee Admissions Program (USRAP)
- Suspended pending evaluation
- Limits entry to the U.S.
- Application approval allowed on a case-by-case basis
- Executive Order Guaranteeing the States Protections Against Invasion
- No entry at the southern border
- Entry allowed by the Department of Homeland Security (DHS) and the Secretary of State only on a case-by-case basis
- Executive Order Protecting the Meaning and Value of American Citizenship
- Not currently enforced because of a legal injunction
- Birthright citizenship is terminated
- This may be called anchor baby status
- One parent must be a citizen of the or a legal permanent resident
- Executive Order Protecting the American People Against Invasion
- Information on enforcement of deportation or removal, enforcing illegal entry, and enforcement of unlawful presence
- Expands expedited removal
It is important to be aware that all laws, especially immigration laws, may be updated, changed, or even revoked at any time, especially when there are changes in presidential administrations. Because of these possible changes and updates, it is essential to have legal representation for any type of immigrant discrimination issue.
Do Immigrant Workers Have Rights?
Yes, immigrant workers have rights under U.S. labor and employment laws. Regardless of their immigration status, they are protected under anti-discrimination laws, have the right to receive at least the federal minimum wage and overtime and work in a safe and healthy environment.
These rights apply whether the worker is a legal immigrant with an employment visa or an undocumented worker. Immigrant workers must understand these rights to protect themselves from exploitation and unfair treatment.
Here are a few examples of situations where immigrant workers’ rights may not be met:
- Wage Theft: An employer may take advantage of an immigrant worker’s unfamiliarity with U.S. labor laws or fear of deportation by paying less than the minimum wage or not paying for overtime.
- For instance, a restaurant owner may pay a dishwasher who is an immigrant far less than minimum wage, citing reasons such as their immigration status or lack of work permit.
- Unsafe Working Conditions: Immigrant workers may be subjected to unsafe working conditions, especially in industries like construction, agriculture, or manufacturing.
- For example, a construction company might not provide adequate safety training or equipment to its immigrant workers, exposing them to a high risk of accidents and injuries.
- Discrimination and Harassment: An immigrant worker might face discrimination or harassment based on their national origin or immigration status.
- An example could be a supervisor who consistently passes over a worker for promotions because they are from a different country or coworkers who subject an immigrant worker to derogatory comments or jokes about their nationality.
- Retaliation: Some employers may retaliate against immigrant workers who assert their rights.
- For example, if an immigrant worker complains about not receiving minimum wage, the employer might respond by threatening to report the worker’s immigration status to authorities.
- Exploitation of Undocumented Workers: Undocumented workers are particularly vulnerable to exploitation because they may fear that complaining about working conditions could lead to their deportation.
- They may be made to work extremely long hours, under dangerous conditions, and for less than minimum wage.
In each of these situations, the rights of immigrant workers are being violated. Despite the challenging circumstances, immigrant workers have legal protections and can seek help from legal professionals or workers’ rights organizations.
What Can Happen if a Person Overstays Their Temporary Work Visa?
When a noncitizen comes to the United States for a job, they might come on a temporary work visa. If they overstay that temporary work visa, they may lose their legal status.
When this happens, their visa might be voided immediately and they might face deportation. They may also face being banned from reentering the U.S. in the future for anywhere from three to ten years. They may also have trouble obtaining a visa at a future time.
In addition to facing all of these issues, someone who overstays their temporary work visa can also be detained by Immigration and Customs Enforcement (ICE). The longer a temporary work visa is overstayed, the harsher the punishments may be.
What Is the Role of Immigration and Customs Enforcement (ICE) in Immigration Enforcement?
ICE is the enforcement arm of the Department of Homeland Security (DHS). It is a federal agency that is responsible for investigating a wide variety of issues, which include but may not be limited to:
- Passport fraud
- Gun smuggling
- Terrorism
- Cybercrimes
- Human trafficking
- Drug smuggling
- Money laundering
- Child exploitation
- Illegal immigration
ICE can arrest and detain a suspect for up to 48 hours without needing a warrant. This is because there are fundamental differences between immigration proceedings, which are considered civil, and criminal proceedings.
It is important to note that, even when someone pays a state criminal bond to get out of jail, they can still be taken into ICE custody with an immigration detainer. Also, Miranda warnings are typically not required in immigration arrests because of their civil nature.
It is important for individuals to be aware that they do have rights similar to those in criminal cases that they can exercise when interacting with ICE. For example, if ICE asks questions regarding their immigration status, they have the right to remain silent.
They may also decline to consent to a search if one is requested by an ICE agent. These rights are given under case law holding that they are provided under the Fourth and Fifth Amendments, even in narrow immigration contexts.
What Evidence May Be Required In Court for an Immigration Discrimination Issue?
If someone does have to file a case because of their immigration issue or if they are required to go to court, there are certain documents and evidence that they may need to be able to provide, depending on the specifics of their case.
The main categories of documents that may be required in any type of immigration case or dispute often include:
- Personal Identification:
- government-issued ID
- birth certificate
- marriage certificate
- proof of family ties:
- marriage certificate
- birth certificates of children born in the United States
- Proof of Physical Presence in the United States:
- lease agreement
- employment records
- utility bills
- Proof of Good Moral Character:
- certification of community service
- criminal background check
- letter of recommendation
- other types of proof
- Evidence of Hardship:
- medical records showing the individual or their family member has a serious health issue
- a letter from a therapist
- other documents that can show how a deportation would cause a hardship
There may also be other types of documents or evidence that is necessary to provide, depending on the immigrant discrimination issue. An immigration attorney will be able to guide their client through exactly what they will need, ensure that the information is properly submitted, and protect their rights throughout the process.
It is not advisable to try and handle any type of immigration issue alone, especially because there are strict deadlines, paperwork requirements, and often language barriers and issues. Having an attorney will alleviate a lot of the stress associated with being involved in an immigration case by being there any time an individual has to appear before a court, submitting any paperwork, and presenting any arguments or defenses on their behalf.
Do I Need a Lawyer If I Have Immigrant Discrimination Issues?
If you believe you have been the victim of immigration discrimination, it might be helpful to consult with an attorney. An experienced immigration lawyer can provide valuable legal advice, explain your rights, and guide you through the process of making a claim. They can also represent you in any legal proceedings or negotiations.
At LegalMatch, you can find a qualified attorney who has experience in immigration law and who can provide you with the assistance you need. The lawyer-client matching services submission process can be done in as little as 15 minutes and you can get started finding the help and stress relief you need.
While you are filling out your online forms, you will be able to select any preferences you may have, such as your first language and communication needs, ensuring that you will be able to understand everything that is happening as your case moves along. Once you complete the submission process, you will start getting messages from LegalMatch member lawyers who are licensed and prescreened in about one business day.
Each response you get will include information about the lawyer to help you decide who might best fit your needs, such as their background, costs, and client reviews. Having legal help with your immigration discrimination issue is essential, so get a head start today with LegalMatch’s free lawyer-client matching services.
