The Immigration and Nationality Act (“INA”) prohibits discriminatory practices by employers in hiring, firing, or recruiting an employee based on an individual’s national origin or citizenship status, and also prohibits unfair documentary practices to verify employment eligibility based on an individual’s national origin or citizenship status. 8 U.S.C. § 1324b.
Under the anti-discrimination provision of the INA, employers cannot discriminate against “protected individuals” in the hiring process based on the citizenship status of the “protected individual.” A “protected individual” includes citizens, nationals of the US, certain lawful permanent residents, refugees and asylees. 8 U.S.C. § 1324 b (a) (3). However, those receiving deferred action under DACA are not a “protected individual,” therefore, employers do no violate prohibited discriminatory practices when refusing to hire an individual based on his/her citizenship status if that person is not a “protected individual.”
However, individuals with employment authorization are still protected from prohibited discriminatory practices based on national origin and from document abuse under 8 U.S.C. § 1234b (a) (1) and 8 U.S.C. § 1234b (a) (6). Therefore, the “temporary nature” of a person’s employment authorization cannot be used as a pretext for discrimination based on national origin. Furthermore, INA 8 U.S.C. § 1234b (a) (5) protects beneficiaries of the DACA program from retaliation for exercising their rights against discrimination
However, the INA does provide that it it is not an unfair immigration-related employment practice for a person or other entity to prefer to hire, recruit, or refer an individual who is a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified.
It is also an unfair immigration-related employment practice under the INA for a person or other entity to intimidate, threaten, coerce, or retaliate against any individual for the purpose of interfering with any right or privilege secured under the INA or because the individual intends to file or has filed a charge or a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the INA. An individual so intimidated, threatened, coerced, or retaliated against shall be considered to have been discriminated against.