[authors: Roy J. Barquet, Bennett L. Epstein]

Renewed Hiring Trends Present Opportunities to Revisit Policies on Employment of U.S. Citizens and Foreign Nationals
Written by: Roy Barquet

The division of the U.S. Department of Justice dedicated to enforcing the anti-discrimination provisions of the Immigration & Nationality Act (INA), namely the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), recently announced settlement agreements with two large-based corporate employers arising from their alleged discrimination against employment-eligible foreign nationals. Collectively, the announced settlements serve as a reminder to U.S. employers to avoid discrimination in the recruitment and employment verification process of foreign nationals. You can achieve this in part by changing internal policies and manuals to reflect the INA’s protections as well as by training human resources personnel.

On March 28, 2012, the OSC settled a violation of the anti-discrimination provisions of the INA by Onward Healthcare, Inc., a national health care staffing company based in Connecticut involving mostly rehabilitation, therapy, and travel nursing positions. The settlement entailed a $100,000 civil penalty for Onward’s broad-based recruitment efforts over more than 12 months to recruit only health care workers that were U.S. citizens. In a longstanding recruitment campaign exceeding a year, Onward advertised via the Internet hundreds of available health care positions by mandating that each employment position’s minimum requisites included U.S. citizenship. The OSC noted that employment-eligible foreign nationals, including lawful permanent residents, and those holding employment authorization documents, should have been allowed to apply as well. U.S. law only permits employers to restrict employment opportunities to U.S. citizens if such jobs are necessarily limited to citizens by law, regulation, or government contract. The OSC concluded that the lack of legal basis for Onward’s publicized citizenship preference created a discriminatory barrier to foreign nationals seeking employment.