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Immigration Status
Almost three decades ago, in 1986, Congress enacted the Immigration Reform and Control Act of 1986 (IRCA), which for the first time in American history imposed penalties on employers for employing persons not authorized to work. In enacting employer sanctions, Congress also sought a counterbalance to overzealous employers who might discriminate against a job applicant on a mere suspicion of a lack of a work-authorized status. To accomplish that goal, Congress created a new category of anti-discrimination protection to guard against “Citizenship Discrimination” (8 U.S.C. 1324b).
Then, just four years later, in 1990, Congress created a new category of anti-discrimination protection known as “document abuse” to prohibit employers from requiring specific documents from applicants. Six years after that, in 1996, Congress amended the document abuse provision to require an intent to discriminate. To provide guidance to the employer community and to prosecute claims of citizenship discrimination, Congress established within the Department of Justice (DOJ) the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).
So, after almost 30 years of experience with this statute and with the agency charged with defining and enforcing it, one would think that the basic ground rules as to what employers may and may not do would have been clarified years ago. Unfortunately, this is not the case. Although some issues have indeed been clarified, others remain unsettled with very fuzzy guidance as to what are permissible and what are prohibited practices. In an effort to provide clarity to employers as to permissible questions that may be posed to prospective employees, we set out the most common questions that corporate clients ask us ' and provide our recommendations.
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