Understanding Unfair Immigration-Related Employment Practices

Immigration status and work authorization are central to employment in the United States, but federal law strictly limits how employers may consider these factors. Under 8 U.S.C. §1324b, certain forms of discrimination and verification practices are legally defined as unfair immigration-related employment practices, carrying potential civil penalties and remedial obligations for employers.

This article explains what those practices are, who is protected, how enforcement works, and what both workers and employers can do to prevent and address violations, drawing on the statute and implementing regulations issued by the Department of Justice.

Legal Background: Where These Protections Come From

Unfair immigration-related employment practices are governed primarily by section 274B of the Immigration and Nationality Act (INA), codified at 8 U.S.C. §1324b. This section was enacted as part of the Immigration Reform and Control Act (IRCA) to balance new employer obligations to verify work authorization with strong protections against discrimination.

• 8 U.S.C. §1324b defines prohibited conduct based on national origin and citizenship status, and sets out the enforcement scheme.
• 28 C.F.R. Part 44 contains Department of Justice regulations that interpret and implement §1324b, including a regulatory definition of “discriminate” and explanations of documentary abuse.
• The Department of Justice’s Immigrant and Employee Rights Section (IER) investigates charges, brings cases, and issues guidance to employers and employees.

These rules exist alongside other federal laws, such as Title VII of the Civil Rights Act, which independently prohibits national origin and race discrimination, and Executive Order 11246, which covers certain federal contractors.

Who Is Protected Under 8 U.S.C. §1324b?

The statute protects most work-authorized individuals in the United States, but it distinguishes between different groups for specific purposes.

Protected Individuals

For citizenship-status discrimination, §1324b focuses on protected individuals, a term defined in the statute and clarified by regulation.

• U.S. citizens and U.S. nationals
• Lawful permanent residents, with some limitations tied to whether they have applied for naturalization
• Refugees and asylees
• Other classes of noncitizens who are specifically authorized to work and fall under the statutory definition of “protected individuals”

While unauthorized immigrants are not covered for purposes of discrimination claims under this section, employers remain prohibited from knowingly hiring or continuing to employ individuals who lack authorization under related provisions of immigration law.

National Origin Protection

For national origin discrimination, the statute applies broadly to any individual other than an unauthorized alien in the context of hiring, recruitment, referral for a fee, or discharge. This national origin protection overlaps with, but is not identical to, Title VII’s coverage.

What Counts as an Unfair Immigration-Related Employment Practice?

Section 1324b and its regulations identify several distinct categories of prohibited conduct. Each category is tied to specific actions employers may take during hiring, verification, or employment decisions.

1. Discrimination in Hiring, Recruitment, Referral, and Firing

The core provision makes it unlawful to intentionally treat a worker differently because of national origin or citizenship status in key employment decisions.

• Hiring: Rejecting otherwise qualified applicants due to their foreign-sounding name, accent, or citizenship status.
• Recruitment and referral for a fee: Steering job opportunities away from certain communities or charging different fees based on citizenship or national origin.
• Discharge: Terminating employees because of their citizenship status or country of origin, rather than legitimate job-related reasons.

Department of Justice regulations specify that discrimination in this context means intentional differential treatment because of citizenship status or national origin, regardless of the employer’s motive or hostility.^[10] In other words, even well-intentioned but unequal treatment can violate the law if it is based on these protected characteristics.

2. Unfair Documentary Practices in Form I-9 and E-Verify

Employers must verify work authorization using Form I-9, and many also use E-Verify. However, the law restricts how they may request and evaluate documents.

Historically called “document abuse,” the statute now describes unfair documentary practices, which occur when an employer treats individuals differently in the verification process because of national origin or citizenship status.

• Requesting more or different documents than necessary to establish identity and work authorization, based on a worker’s perceived foreign background.
• Insisting on a particular document (for example, demanding a specific immigration document from noncitizen workers) rather than allowing them to choose from the list of acceptable documents.
• Refusing to accept documents that reasonably appear to be genuine and relate to the individual, especially when such refusal is directed at certain nationalities or noncitizens.
• Treating some employees differently in the I-9 or E-Verify process (for example, re-verifying only noncitizens or those who “look foreign”).

These practices are unlawful when done for the purpose, or with the intent, of discriminating in violation of the statute’s main anti-discrimination provisions.

3. Intimidation, Threats, Coercion, and Retaliation

Section 1324b also protects individuals who assert their rights. It is an unfair practice to intimidate, threaten, coerce, or retaliate against anyone because they seek to enforce protections under this section.

• Threatening to report someone to immigration authorities if they complain about discrimination or assist in an investigation.
• Reducing hours, demoting, or firing workers after they file a charge or cooperate with the Department of Justice.
• Pressuring employees not to participate in hearings or investigations related to immigration-related employment discrimination.

The statute makes clear that individuals subjected to such retaliation are considered to have been discriminated against for purposes of relief and enforcement.

When Employer Preferences Are Permitted

Although the law broadly prohibits discrimination, it recognizes narrow circumstances where citizenship-based preferences are permissible.

Equal Qualification Preference for U.S. Citizens and Nationals

The statute explicitly provides that it is not an unfair practice for an employer to prefer hiring, recruiting, or referring a U.S. citizen or national over an alien when the candidates are equally qualified.

This limited preference must be applied carefully. Employers cannot use it to exclude protected noncitizens systematically, nor can they employ it as a pretext for broader discriminatory policies.

Legal and Contractual Requirements

Another important exception covers citizenship status discrimination that is required by law, regulation, executive order, or certain government contracts.

• Where a federal statute or regulation mandates U.S. citizenship for a particular sensitive position, following that requirement does not violate §1324b.
• Some federal, state, or local government contracts require specific citizenship categories for security or policy reasons; complying with those terms is generally permissible.

Employers should document any legal or contractual basis for citizenship preferences and ensure they do not go beyond what is expressly required.

Enforcement: How Claims Are Investigated and Adjudicated

Section 1324b sets out a structured process for filing and resolving charges of unfair immigration-related employment practices.

Filing a Charge

Individuals who believe they have experienced discrimination or retaliation must typically file a written charge under oath or affirmation containing information required by the Attorney General.

• Charges are usually filed with the Department of Justice’s Immigrant and Employee Rights Section (IER).
• There is a time limit: no complaint may be filed respecting an unfair practice that occurred more than 180 days before the date of filing.
• The charging party becomes a formal party to any complaint that may later be brought by the government.

Investigation and Resolution

IER investigates charges, may attempt to resolve matters through settlement, and can file complaints before an administrative law judge when appropriate.

Remedies and Penalties

When violations are found, employers may be required to provide both monetary and non-monetary relief. While specific amounts depend on the circumstances and statutory limits, common remedies include:

• Back pay for lost wages caused by discriminatory decisions.
• Hiring or reinstatement of adversely affected workers, where appropriate.
• Civil penalties payable to the government.
• Cease-and-desist orders requiring employers to stop unlawful practices.
• Training and policy revisions to prevent future violations.

Employer Compliance: Practical Steps to Avoid Violations

Employers are expected to balance their duty to verify work authorization with their obligation not to discriminate. The following measures help reduce legal risk and promote fair treatment.

Develop Clear, Non-Discriminatory Hiring Policies

• Base employment decisions on job-related criteria, such as skills and experience, not citizenship status or national origin, except where law expressly requires otherwise.
• Standardize procedures for screening, interviewing, and decision-making to minimize arbitrary differences in treatment.
• Ensure recruiters and hiring managers understand the limits of permissible questions about immigration status.

Standardize Form I-9 and E-Verify Practices

• Use the same verification steps for all employees, regardless of how they look, sound, or where they are from.
• Allow workers to select from the list of acceptable documents to demonstrate identity and work authorization, without steering them toward or away from particular documents.
• Train staff not to request additional documents from certain groups, or to reject valid documents based on stereotypes or assumptions.

Implement Anti-Retaliation Safeguards

• Adopt written policies prohibiting retaliation against anyone who raises concerns about discrimination or participates in investigations.
• Provide multiple channels for employees to report suspected violations confidentially.
• Monitor employment actions affecting complainants or witnesses for possible retaliatory motives.

Guidance for Workers: Recognizing and Responding to Violations

Workers who understand their rights are better positioned to protect themselves and others from unfair practices. While each case is fact-specific, certain patterns often signal potential violations.

Warning Signs of Possible Discrimination

• You are told you cannot be hired because you are not a citizen, even though you are legally authorized to work and no law requires citizenship for the job.
• You are asked to present more or different documents than coworkers, or are told that only one particular immigration document is acceptable.
• You lose your job or are demoted shortly after complaining about document demands or discriminatory comments.
• Workers of a particular nationality or citizenship category are singled out for re-verification or different E-Verify procedures.

Steps Workers Can Take

• Document what happened, including dates, names, and the exact language used in conversations.
• Review publicly available information about rights under 8 U.S.C. §1324b and related regulations.
• Consider contacting the Immigrant and Employee Rights Section for assistance, information on filing a charge, or outreach events.
• Be mindful of the 180-day timeframe for bringing complaints based on specific incidents.

Frequently Asked Questions (FAQs)

1. How is national origin discrimination under §1324b different from Title VII?

Both laws prohibit national origin discrimination, but they operate through different agencies and procedures. Section 1324b focuses on immigration-related employment practices and is enforced by the Department of Justice’s IER, while Title VII is enforced by the Equal Employment Opportunity Commission and covers broader aspects of workplace discrimination. In some cases, individuals may have overlapping rights under both statutes.

2. Does the law protect unauthorized workers?

Unauthorized workers are not covered by §1324b’s core anti-discrimination provisions, which expressly exclude unauthorized aliens from the definition of individuals protected in hiring and discharge contexts. Nonetheless, employers still face penalties under other immigration laws if they knowingly hire or continue to employ workers without authorization.

3. Can an employer ever require U.S. citizenship?

Yes, but only in narrow circumstances. Employers may impose citizenship requirements when a statute, regulation, executive order, or certain government contracts expressly mandate such limitations. Absent those legal bases, blanket citizenship requirements for positions open to work-authorized noncitizens can violate §1324b.

4. What does “intentional discrimination” mean in this context?

Under Department of Justice regulations, discrimination under §1324b generally involves deliberately treating someone differently because of citizenship status or national origin, regardless of whether the employer’s motives are hostile.^[10] An employer does not need to harbor animosity; it is enough that decisions are consciously based on those protected characteristics.

5. Are employers allowed to ask about work authorization during hiring?

Employers may ask whether an applicant is legally authorized to work and whether they will need future sponsorship. However, they may not use such questions to exclude otherwise authorized workers because of citizenship status or national origin, and they must refrain from demanding specific immigration documents before hiring or in a way that targets certain groups.