Dear Littler: We are a multi-state manufacturing company with facilities throughout the United States. Like many companies, we have experienced a great deal of employee turnover in the last few years. Many of our employees are immigrants. As we are advertising for and hiring new employees, can we require proof of permanent residence so we can be assured employees will stick around? And can we refuse to hire those whose employment authorization documents are set to expire within a year?
—Concerned in Chicago
Dear Concerned,
The short answer is “no” in both cases. The U.S. Immigration and Nationality Act (INA) prohibits employers with four or more employees from discriminating because of citizenship status in hiring, firing, recruitment, or referral for a fee unless U.S. citizenship is required in order to comply with a law, regulation, or executive order, or if required by a federal, state, or local government contract.1 In addition, employers may not require different or additional documents from those required to verify employment eligibility and identity on Form I-9.2 The U.S. Department of Justice (DOJ), which enforces the anti-discrimination provisions of the INA, has stated: “[e]mployers are not allowed to specify which documents they will accept from a worker and should not prevent an individual from working because of a document's future expiration date.”3
So, when advertising for new hires or making hiring decisions, you may not require that potential employees...
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