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How to prevent allegations of immigration status discrimination

As a Chicago employer, you likely have applicants and employees with a wide variety of immigration statuses. Just as it is illegal to discriminate against employees and job applicants based on protected statuses like race, nationality, gender and disability, it's also illegal to discriminate based on immigration or citizenship status.

That is confusing for many employers. They don't want to run afoul of laws prohibiting people who are in the country illegally or who don't have the proper documents from getting a job.

The Immigration and Nationality Act prohibits discrimination in recruiting for a job, taking applications, interviews, verifying work authorization (for example, through the E-Verify system) and hiring and terminating employees. It also prohibits retaliation against those who file a discrimination complaint or otherwise claims discrimination.

The law requires employers to accept any valid document provided by an employee presents regarding their immigration or citizenship status as long as it "reasonably appears to be genuine and to relate to the employee," according to the U.S. Citizenship and Immigration Services (USCIS). It prohibits employers from doing any of the following based on a person's status or national origin:

  • Asking for any employment authorization documents until and unless a person has accepted a job offer.
  • Refusing to accept a document because of it's expiration date as long as it isn't already expired.
  • Asking to see employment authorization documents before an individual accepts a job offer.
  • Refusing to accept a document or refuse to hire an individual because a document will expire in the future.
  • Requesting a specific employment authorization document to complete a Form I-9 or create an E-Verify case.

It's essential to know the laws around immigration and citizenship status and to be certain that your Human Resources personnel and anyone else in your company who's involved in personnel matters know them as well. If an individual files a complaint or initiates legal action alleging discrimination in these areas, talk with your attorney.

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