Carl Shusterman, Managing Partner, Law Offices of Carl Shusterman

Most professional recruiters today are no doubt aware that knowingly hiring or continuing to employ undocumented workers is a violation of U.S. immigration law. Violators can be assessed considerable fines and may be subject to criminal prosecution.

What recruiters also should keep in mind is that employers can be penalized for overzealousness when it comes to reviewing job applicants to ensure they are authorized to work in the U.S. Under anti-discrimination statutes, employers cannot discriminate against job applicants based on their citizenship status or nationality. Recruiters can take an active role in helping their clients or employers steer clear of immigration anti-discrimination laws merely by being aware of them.

The anti-discrimination provisions of the immigration laws are not new. They were enacted as part of the Immigration Reform and Control Act, signed by President Reagan into law in 1986.

Nevertheless, there are still frequent articles in the press about employers paying hefty fines to the U.S. government due to violations of anti-discrimination provisions of the immigration laws. Unfortunately, employers continue to pay hundreds of thousands of dollars in fines for doing something which easily could have been avoided.

Though the immigration laws have many permutations, the anti-discrimination provisions are not complex. Basically, they require employers to treat job applicants the same, regardless of their citizenship status or their nationality.

This includes any overt statement of employer policy that clearly establishes a discriminatory standard. As a recent flyer by the Justice Department states, unless it is legally required, employers should avoid the following unjustified discriminatory language in job postings:

• “Only U.S. Citizens”
• “Citizenship requirement”
• “Only U.S. Citizens or Green Card Holders”
• “H-1Bs Only,” “OPT Candidates Only/Preferred,” etc.
• “Must have a U.S. Passport”
• “Must have a green card”
• “I-9 qualifying identification required at time of application”

As recruiters view job postings, they should take a moment to ensure they do not include this type of language.

Under U.S. immigration law, employers must complete an I-9 form for each employee hired in order to document the applicant’s legal working status. This is where the trouble often occurs. Many employers are so worried about being fined for hiring applicants who are not authorized to work in the U.S. that they act like immigration officers when it comes to completing I-9 forms at the time of hiring.

At this stage, employers should follow the letter of the law and not overreach. In Section 1 of the I-9 form, a job applicant is required to state whether he is a U.S. citizen, a non-citizen national, a permanent resident or an alien authorized to work until a particular date. Though the employer may feel entitled to demand to see a document proving that whatever the applicant has entered in Section 1 is true, the law is clear that the employer cannot do so.

Section 1 also has a place for an applicant to enter his Social Security number. Though it may seem counter intuitive to many employers, the applicant’s failure to do so is not a ground for not hiring him — unless the employer takes part in the government’s E-Verify program, and even here there are exceptions.

So, what documents can an employer require a job applicant to produce for I-9 purposes?

Section 2 of the I-9 form requires that an employer see a document that establishes the applicant’s identity (List B) and his authorization to be employed (List C), or a document that establishes both (List A).

There are a variety of documents that can be used to establish an applicant’s identity, from a driver’s license to a school ID card, and also a variety of documents that demonstrate work authorization. Documents that do both include a U.S. passport, a “green card” and several others. A complete list of I-9 A, B, and C documents can be accessed at the U.S. Citizenship and Immigration Services website.

Employers should never specify which List A, B or C documents a job applicant must produce. They should simply show the job applicant the three lists (which are on the back of form I-9) and let the applicant decide which documents he or she wishes to provide.

Recruiters do not have to be experts in these documents nor need they have detailed knowledge of the nuances of immigration anti-discrimination statutes. However, it is not a bad idea to counsel clients or employers that when it comes to seeking or on-boarding new personnel, they should treat all applicants the same.

Carl Shusterman served as a trial lawyer with the U.S. Immigration and Naturalization Service (1976-82) and is principal of The Law Offices of Carl Shusterman. He can be reached at carl@shusterman.com. Follow Carl Shusterman on Twitter @immigrationasap.