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Immigration Law Blog

Thursday, March 28, 2019

Common Ways Employers Violate the Immigration and Nationality Act

The Immigration and Nationality Act (the “Act”) is a federal law governing most aspects of immigration in the U.S. The Act provides employment-related regulations such as discrimination protections and visa quotas for employers. Due to the complexity of the Act and its broad nature, many employers violate the Act without being aware of doing so. The most common ways that employers violate the Act are addressed below.

1. Making employment decisions based solely on immigration status.

Many employers are not aware that immigration status is not allowed to be considered in employment decisions (e.g. hiring, firing). If an individual holds a valid visa entitling them to work in the U.S., then employers are required by law to treat them the same as a U.S. citizen. 

2. Taking retaliatory action against alien employees for reporting violations. 

Immigrants receive whistleblower protection in the U.S. Most Americans are familiar with whistleblower protections offered to employees for reporting an employer’s illegal conduct. However, many may not realize that these protections are extended to immigrants under the Act. Thus, if you are an immigrant and believe that your employer has taken retaliatory action against you for your reporting of illegal conduct, you should consult with an experienced attorney to determine whether you have a strong case.

3. Demanding additional documentation not required by law.

If you are hired by an employer as an immigrant, then the employer can only request personal documents as allowed by law to prove your identity and work authorization. These documents include:

  • Driver’s license
  • Permanent resident card
  • Passport
  • Social security card
  • Visa
  • Work permit

This list is not exhaustive --  the law does allow for other specific documentation to be requested prior to beginning employment. However, if an employer requests documentation beyond what is allowed, then the employer is in violation of the Act. Because of the whistleblower protection afforded under the Act, you are protected from retaliatory action should you decide to file a report with the appropriate agency. 

4. Requiring citizenship or a specific visa.

Employers are not allowed to discriminate in hiring based on the specific right to work. Employers may consider whether you are legally allowed to work in their hiring (hiring someone without work authorization is a breach of the Act), but they may not consider the specific source granting such right. Thus, if an employer requires you to convert your visa or attain citizenship to gain or continue employment, then that employer is likely in violation of the law. There are certain exceptions to this which are defined in the Act, but as a general rule, employers cannot require you to change your visa or citizenship to gain employment or remain employed.

Given how complex the Act is, it’s not surprising that employers are often in violation of the Act without knowing. If you are an immigrant and believe that your employer has violated the Act, or are an employer who is worried that you may be violating the Act, contact an experienced immigration attorney to discuss your concerns. 


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