News Update - August 10, 2010

By Alan Lee, Esq.^†‡

Pros & Cons of Labor Certification Employers Asking for Legal Status of Candidates at Interview

Under the Immigration Reform and Control Act of 1986 (IRCA) instituting employer sanctions, many employers have taken extra precautionary steps to avoid hiring undocumented employees. However, this effort to keep from being penalized dances on a thin line between precautionary and discriminatory. Despite the permittance of employers to inquire about the legal status of potential hires at any time for the employer’s own safety, it must be highlighted that such processes must be equally performed across all potential hires. This has particular resonance with employers who are sponsoring aliens for immigration through labor certification and must interview many candidates to determine if they are able, willing, qualified and available to fill the open position. In fact, according to Title VII of the Civil Rights Act of 1964 “which prohibits employment discrimination based on race, color, religion, sex, or national origin,” employers cannot selectively question the legal status of certain candidates based on the above mentioned attributes (www.eeoc.gov). Any employer “who requests employment verification only for individuals of a particular national origin, or individuals who appear to be or sound foreign” may be violating both Title VII and IRCA (www.eeoc.gov). This indicates that if employers are to verify the legal statuses of their potential hires, they must perform the same verification process with all applicants.

In conjunction with this requirement, employees themselves are allowed to choose which “acceptable documents they wish to present” and an employer “cannot require an employee to present more or different documents than required or refuse to accept documents that appear genuine.” *  This implies that a request for further proof of legal status when the documents already presented appear valid can lead to a charge of unlawful discrimination on the part of the employer.  Hence, although employers are allowed to inquire about the legal status of job candidates, they must do so in a manner that complies with Title VII of the Civil Rights Act to avoid violating the equal opportunity laws.

† The author is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

‡ This article © 2010 Alan Lee, Esq.

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.