In a world of ever-increasing digital dependency, online job postings remain the primary recruiting tool for talent globally. But recent years have witnessed a noticeable increase in federal investigations into nationality and citizenship-status discrimination in job adverts.

Attracting much media attention earlier this year, a lawsuit filed against Arthur Grand Technologies involved a racially discriminatory “whites only” job vacancy. 

With the proliferation of artificial intelligence, DOJ-IER now has a more powerful tool to scour online job postings to quickly detect potentially discriminatory language

The offending ad, originally posted on 4 April 2023, required eligible candidates to be “US born citizens [white]” for a role based in Dallas, Texas. The racial specification in brackets was not meant to be made public as a separate note next to the requirement read: “[Don’t share with candidates]”.

The Department of Justice’s Immigrant and Employee Rights Section (DOJ-IER) settled the allegations in May 2024, with the tech firm claiming that a disgruntled former employee added the discriminatory language in an attempt at embarrassing the company.

With Donald Trump’s election victory this week underpinned by a promise to get tough on immigration, should US businesses expect an uptick in similar Immigration and Nationality Act (INA)-related enforcement when the Republican returns to the White House in January 2025? According to immigration specialists, yes, they should.

“Voters consistently rank immigration as one of their top issues in the 2024 election,” says Fisher Phillips’ Shanon Stevenson. “Although neither candidate provided details on what they envision for the role of DOJ-IER, a Trump administration would likely result in a focus on investigating and bringing enforcement actions against companies that discriminate against US citizens. 

“With the proliferation of artificial intelligence, DOJ-IER now has a more powerful tool to scour online job postings of employers to quickly detect potentially discriminatory language,” adds Stevenson, explaining that the agency may conduct its own investigations without the need of a complainant. 

Amid reports that Trump wants to take direct control of the DOJ as an attack dog for conservative causes, employers would be wise to avoid language in job postings that limit eligibility based on citizenship status or national origin.

Anti-discrimination in immigration

Consolidating various immigration laws into a single text, the Immigration and Nationality Act (INA) 1952 prohibits citizenship status in hiring, firing, or recruitment or referral for a fee; national original discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices in employment eligibility verification (generally, Form I-9 and E-Verify), and retaliation or intimidation against workers.

The Department of Justice’s Immigrant and Employee Rights Section (DOJ-IER), enforces the anti-discrimination provision of INA.

Investigations into unfair documentary practices are also on the rise, with Holland & Hart’s Christopher Thomas telling GML that these cases often arise when employers reject acceptable documentation or insist upon certain types of documentation; for example, refusing to accept updated documentation confirming legal status or requiring a permanent resident to produce their permanent resident card. 

“On one hand, an employer wants to ensure the applicant is actually authorised to work in the US to avoid penalties from Immigration and Customs Enforcement; on the other hand, the employer cannot ask for too many documents or too much information to steer clear of a DOJ-IER discrimination charge,” explains Stevenson.  

“The increase in enforcement in this area may be because more employers registered to use E-Verify to take advantage of the option to examine identity and work authorisation documents remotely. As a result, DOJ-IER has access to more employer data to uncover potential violators.” 

In an interesting additional trend, significant fines have been levied against companies adjudged to have complicated the application process for eligible US workers.  

“As part of the process to secure permanent residency for employees with temporary legal status (eg, H-1B visas), some employers created obstacles that made it more difficult for US workers to apply for positions,” says Thomas, explaining that this was likely done to prove no qualified or available US workers were available for the positions in question. 

Another recent enforcement trend relates to US export controls, specifically the International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR). These regulations require employers to seek special authorisation to employ “US persons” if their job requires accessing export-controlled items.

“According to DOJ-IER, the most common issue relates to employers’ misunderstanding of the term ‘US person’ as defined by ITAR and EAR. US persons include US citizens, US nationals, lawful permanent residents, workers granted refugee status, and workers granted asylum,” explains Stevenson. 

“It can be permissible to ask pre- and post-hire screening questions in limited circumstances, but the employer must exercise caution to segregate the employment eligibility verification process from the export control screening process, as well as to ensure that it does not implicate national origin discrimination.”

All of the interested federal agencies tend to operate on tips they receive, usually from negative press, competitors, or disgruntled employees

A review of recent settlement activity illustrates that no sector is safe from federal scrutiny. 

“The DOJ-IER seems to focus on all industries, ranging from staffing agencies to hotel chains, to tech, to financial services, to farming, to aviation, to automotive, to defense contractors, to universities,” says Thomas. “No industry, it seems, is immune from such investigations.”

Given the likely ongoing scrutiny of INA compliance, how can US employers avoid falling foul of the federal law’s various provisions?

“Take steps to vet and ensure your recruiting and onboarding software – particularly relating to screening out applicants and Forms I-9 – are compliant under applicable law,” advises Thomas.

Hiring managers and HR personnel should also receive ongoing training on INA and federal enforcement activity, and periodically update global mobility, recruiting, onboarding policies, procedures, and employee handbooks.

And in preparation of federal investigations, employers should maintain detailed records, conduct internal audits, and track areas in which responsible company personnel need targeted training or even possible discipline.

“All of the interested federal agencies tend to operate on tips they receive, usually from negative press, competitors, or disgruntled employees. DOJ-IER, in particular, has taken the position that it will investigate every complaint it receives,” Thomas adds.  

“Accordingly, when employers sense that a situation with employee discipline is not going well, they should partner with competent legal counsel to ensure the wagons are properly circled when it appears probable a complaint will be raised.”

Top tips for INA compliance

Fisher Phillips’ Shanon Stevenson offers key action points to help employers create a culture of compliance with federal immigration law:

- Review application forms, current job openings, and export compliance processes for potentially discriminatory questions, language, and procedures;

- Review default settings in job boards as there are reports that some job boards may default to language that DOJ-IER would view as discriminatory, such as the use of the phrase, “employment authorisation preferred”;

- Conduct an audit of Forms I-9 and E-Verify queries to identify and correct any unfair documentary practices;

- Train recruiters and your HR team on questions they can legally ask about immigration status during the recruitment and onboarding process, I-9s, and E-Verify;

- Treat US citizens, non-US citizen nationals, lawful permanent residents, and workers granted asylum or refugee status consistently in recruitment or hiring, without regard to their citizenship status, except in the limited situation where a law, regulation, executive order, or government contract requires you to consider candidates with certain citizenship statuses; 

- Treat workers consistently in recruitment or hiring, without regard to their actual or perceived national origin; 

- Avoid creating unnecessary hurdles for work-authorised individuals who may not have received a Social Security number yet, including some newly-arrived lawful permanent residents and workers granted refugee status; 

- Employers should not assume that only US citizens are authorized to work; and

- Unless legally required, avoid language in job postings that limits eligibility based on citizenship status or national origin, such as: “only US citizens”; “citizenship required”; “only US citizens or green card holders”; “H-1Bs only”; “H-1Bs and OPT preferred”; “must have a US passport”; “must have a green card”; “must present US birth certificate”; or “native English speakers only”.