Fort McCoy in Wisconsin recently became the temporary home of thousands of Afghan refugees following the U.S. military withdrawal in Afghanistan. As of this writing, Wisconsin has been designated by the U.S. Department of State to permanently receive approximately 400 Afghan refugees within state boundaries. This means that many Afghan refugees may be applying for employment throughout Wisconsin. This situation presents a good opportunity for employers to review their obligations under federal law with respect to considering non-citizens for hire.
The Immigration and Nationality Act
Under the federal Immigration and Nationality Act (“INA”), employers generally cannot make hiring, firing, recruitment or referral decisions based on a worker’s citizenship status. Citizenship status discrimination generally occurs when an employer refuses to recruit, refer, hire or fire someone because of the person’s citizenship or immigration status. One example of citizenship status discrimination is when employers limit jobs to U.S. citizens without legal justification.
Employers must use the Form I-9 to verify the worker’s identity and permission to work within three days after the individual begins working for the employer. Federal law generally allows workers to choose which valid, acceptable documentation to present to their employer to prove their identity and permission to work in the U.S. regardless of their citizenship, immigration status or nationality. Employers that discriminate in this process against individuals with permission to work in the U.S. might violate the INA.
About Afghan Immigrants’ Employment Rights
The U.S. Department of Justice recently issued a fact sheet on Afghan immigrants’ employment rights. That fact sheet can be found here: https://www.justice.gov/crt/page/file/1445236/download. According to the sheet, some Afghan refugees may have received special permission to work in the United States. Some individuals may have status as Special Immigrant Visa holders and may have permanent residence in the U.S. Other individuals, referred to as “parolees,” can work in the U.S. if the U.S. Department of Homeland Security grants them permission to do so. In such instances, the Department of Homeland Security will issue the refugee an Employment Authorization Document, often referred to as an “EAD” or Form I-766.
Refusing to hire Afghans with special immigration status may itself be a violation of the INA, subjecting the employer to investigation, complaint and fines from the U.S. government and prosecuted through the U.S. Department of Justice.
If an employer is seeking employee applicants, it should avoid violating the INA by not implying that it engages in citizenship status discrimination. Examples of possible violations of the law include statements as follows:
- “H-1Bs or OPT Candidates Preferred;”
- “Only U.S. Citizens;”
- “Only Green Card Holders;” or
- “Must Present U.S. Birth Certificate.”
For general or specific information about avoiding discrimination in the hiring process with respect to Afghan refugees or others who are not U.S. citizens, contact your employment law attorney and review your obligations under the INA.