Last week, the blog discussed the Immigration Reform and Control Act of 1986 and the twin immigration related employment enforcement mechanisms: Employment of an unauthorized alien and unlawful discrimination on the basis of alienage.
This week, the blog delves deeper into one of these issues: Unlawful discrimination on the basis of alienage. The Immigration Reform and Control Act of 1986 criminalized the employment of an unauthorized alien. The anti-discrimination statute was added to IRCA as a protection to aliens who had the right to live and work in the United States. Some members of Congress feared that with the criminalization of employment of an unauthorized alien, many businesses would comply with the new law by simply refusing to hire non-US citizens.
The bulk of the work of the Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices seems to be directed at punishing employers who prefer US citizen workers and unfairly discriminate against non-citizens who are permitted to live and work in the United States. In the last two months, the Justice Department recently settled charges they brought against a community college district in Arizona, a fast food franchise operator in Maine and an agricultural staffing agency in Iowa for unfairly discriminating against non-citizens.
But the law is a two-edged sword. IRCA’s anti-discrimination provisions also prevent employers from discriminating against US citizens in favor of hiring individuals who are not authorized to work but can be made authorized by filing a visa petition. IRCA protects US citizens, aliens admitted for permanent residence (also known as green card holders), individuals who have been granted asylum and individuals granted refugee status from unfair employment related discrimination.
On May 17, 2011, the Office of Special Counsel announced the settlement of a citizenship discrimination claim brought against Iflowsoft, LLC, a New Jersey information technology staffing agency. The OSC alleged that Iflowsoft discriminated against US citizens in its hiring practices by expressing a preference for non-citizen temporary visa holders in its employment advertising. Click here to read OSC's press release,and click here to read the the settlement agreement.
Specifically, the OSC found that Iflowsoft violated the anti-discrimination provisions of IRCA becasse it advertised that it preferred individuals who needed an H-1 visa transfer or change of status from F-1 student to H-1. The OSC found that Iflowsoft did not consider qualified US citizens who applied for jobs with the company. Temporary non-immigrants such as H-1B visa holders are not protected by the anti discrimination provisions of IRCA.
As a result of the settlement, Iflowsoft will pay a civil penalty of $6,400 to the Justice Department, $7,158.49 in back pay to the two US citizens that complained, and adopt personnel policies to avoid such discriminatory practices in the future.
Copyright 2011 Richard M. Green, All Rights Reserved
Copyright 2011 Richard M. Green, All Rights Reserved
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