Work Visas

Foreign Worker Discrimination

You've found a qualified job applicant, but the candidate is not a U.S. citizen. Since you would prefer to hire a citizen you opt not to hire him. Watch out! You may have just opened yourself up to charges of employment discrimination.

Deciding whether or not to hire foreign workers is a difficult decision for many business owners.

But from a legal standpoint, the decision really isn't theirs to make. If a qualified foreign worker is denied employment strictly on the basis of their foreign worker status, it can be considered a case of employment discrimination.

The US government wants to make sure that foreign workers don't take jobs that could be filled by Americans. The work visa process is designed to allow the employment of foreign workers under limited conditions. But if foreign workers meet the government's criteria, then they become just as eligible as a US citizen – at least from a workplace discrimination standpoint.

Small business employers need to be up to speed on US employment law and take steps to avoid discriminatory hiring practices. Start by considering these tips for the employment of qualified, non-immigrant workers.

• Uniformity. The best way to avoid allegations of discriminatory employment practices is to strive for uniformity. Qualified foreign workers and US citizens should receive identical treatment when it comes to applications, interviews, salary levels, performance reviews, and other employment practices.
• Documentation. There are a lot of different documents a foreign worker can produce to prove their eligibility for employment. As an employer, it is incumbent upon you to familiarize yourself with these documents so that you are prepared to review them during the course of the application process.
• Job postings. It's inadvisable and potentially illegal to post jobs that are restricted to US citizens or permanent residents. The exceptions to this rule are when the hiring of foreign workers is prohibited by law or by the conditions of a government contract.
• Record maintenance. An I-9 form is the verification that you've seen proper identification from an employee. Keep in mind that if the document appears to be genuine, the law requires you to accept it and document it on an I-9. Also, while certain forms of I-9 related documents need to be re-verified from time to time, it's illegal to request the re-verification of others. Consult the I-9 document itself for details.

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