Daniel Rego got up early on April 8, 2010, donned his best suit, and printed copies of his résumé, headlined by a newly minted master’s degree in information systems from George Washington University. Then he headed off to a career fair held by George Washington University’s School of Business with the hope of landing an IT job.
Rego, a-25-year-old Brazilian citizen, introduced himself to several corporate recruiters. He noted that he holds a work permit called an Employment Authorization Document, or EAD, that allows him to work in the United States for 12 months from the date work is issued to him. And because he is a “STEM” graduate (he graduated with a degree in science, technology, engineering or math), he’s eligible to stay in the U.S. for another 17 months after his first 12 months are up, provided he’s employed and provided his employer is enrolled in the United States Citizenship and Immigration Services’ E-Verify program.
The recruiters balked at Rego and his EAD. He says the recruiters told him that they only hire American citizens or green card holders. After hearing this message repeatedly, Rego says he grew frustrated and told one recruiter that the recruiter was discriminating against him.
According to Rego, the recruiter responded: “If you’re feeling discriminated against, that’s your opinion. Also, even if we hire you, after your visa expires, you will have to leave the company. We want professionals who can stay and build a career.”
While American tech workers confront one of the worst job markets in the history of their profession, foreign workers like Rego face even greater challenges finding work. And the protectionist sentiment currently engulfing the country, which led to the recent increase in H-1B visa fees, certainly doesn’t help their cause.
Meanwhile, proponents of H-1B visas, which allow skilled workers into the country for three years, claim that the tech industry needs more foreign tech talent. In August, Phil Bond, president and CEO of TechAmerica, an IT industry lobbying group, released a statement criticizing H-1B visa fee increases and underscoring the importance of foreign workers to America’s economy: “America’s broken immigration system is threatening to cripple our country’s ability to compete in the global marketplace …The companies impacted by these fee increases provide valuable and innovative expertise to many U.S. companies in critical sectors, and fee increases risk undermining these important goals while America is struggling to recover economically.
An IT Career Path to Nowhere
For foreign citizens like Rego who managed to enter the United States on a student visa and earn an advanced technical degree yet still find themselves woefully unemployable, Bond’s words ring hollow.
Rego left his home in Belo Horizonte, Brazil’s third largest city, in April 2008 to pursue an education in technology in the United States and to work for one of America’s innovative technology companies. “The U.S. …has the best universities in the world,” says Rego. “Even though I love my country, I still think for quality of life, security and career advancement, the U.S. is still the first and foremost place to go.”
After completing his master’s degree, Rego applied for a work permit. The U.S. government granted him an EAD.
With a degree and work permit in hand, Rego went to the career fair hosted by his alma mater–and was summarily rejected. Rego contends that the employers at the career fair discriminated against him, citing the anti-discrimination notice on I-9 employment eligibility verification forms, which reads:
It is illegal to discriminate against any individual (other than an alien not authorized in the United States) in hiring, discharging, or recruiting or referring for a fee because of that individual’s national origin or citizenship status. It is illegal to discriminate against work-authorized individuals. Employers CANNOT specify which document(s) they will accept from an employee. The refusal to hire an individual because the documents presented have a future expiration date may also constitute illegal discrimination.
So did Rego experience unlawful discrimination? It depends on what recruiters specifically told him at the career fair and what their employment policies are vis à vis foreign workers, say immigration attorneys.
Employer’s Right of Refusal
Elizabeth Espin Stern, head of Baker & McKenzie LLP’s global immigration practice, says employers have a legal right to refuse to hire or even consider hiring a foreign worker with a temporary work permit, as long as they’re not singling out a group of foreigners based on their national origin.
The reason employers are under no legal obligation, says Stern, is because the only way to retain foreign employees once their work permits expire is to sponsor them for a visa, and employers are not obligated to incur that burden and expense.
“Employers have the right to ask [prospective] employees whether in the future they’re going to require sponsorship, and they have the right to decline to hire a worker who will require sponsorship for an employment visa in the future,” adds Allen Erenbaum, a partner in Mayer Brown’s Los Angeles office and head of the law firm’s immigration group.
When it comes to anti-discrimination laws, however, employers must tread carefully: “If an employer has a policy that they will only hire non-citizens with green cards, that will constitute illegal discrimination,” says Allen Erenbaum, a partner in Mayer Brown’s Los Angeles office and head of the law firm’s immigration group. “But an employer can have a policy not to hire employees who require visa sponsorship. In these economic times, some employers are hesitant to hire foreign nationals on a temporary basis and take on the costs of sponsorship.”
Against the Law: National Origin Discrimination
In August, Rego received an e-mail from an IT staffing and outsourcing firm advertising a short-term (six-plus months) business analyst position that a client urgently needed filled. The e-mail specifically stated, “Americans only. Indian origin candidates won’t work.”
The e-mail reminded Rego of the “no negroes” and “no Irish” signs that littered U.S. businesses prior to the Civil Rights movement. Stern and Erenbaum agree that the “Indian origin candidates won’t work” qualification sounds like discrimination because it singles out one nationality.
“If the job legitimately requires U.S. citizenship, such as a defense industry job that requires security clearances, that’s one thing, but employers generally can’t require U.S. citizenship, and they certainly can’t specify or single out a country’s nationals that will be rejected out of hand,” Erenbaum says.
Similarly, if an employer only told Indian citizens who were authorized to work in the U.S. (or any foreigner who “looked Indian”) that the employer only hired U.S. citizens or Green Card holders, that too would be considered national origin discrimination, says Stern.
Employers also can’t ask a prospective employee to provide more documents than what’s required on an I-9 employment eligibility verification form, says Erenbaum. I-9 forms require either one document that establishes both identity and employment authorization (such as a U.S. passport, green card or EAD), or one document that establishes the employee’s identity (such as a driver’s license) and another document that establishes work authorization (such as an unrestricted social security card, says Erenbaum).
Nor can employers specify which documents are acceptable and which aren’t. Another no-no: Using the I-9 process to pre-screen prospective employees. Doing any of the above is considered “document abuse,” which is another form of illegal discrimination that can subject an employer to penalties, Erenbaum adds.
Along these lines, employers can’t set different employment verification standards or require different documents because of an employee’s citizenship status or national origin, says Erenbaum.
“They can’t treat an African applicant different from a Canadian applicant,” he says. “They can’t discriminate against prospective employees based on their appearance, based on the fact that they look foreign or anything of that nature.”
As for Rego, he’s hopeful he’ll be able to find a good IT job in the U.S. After all, this is America, the land of opportunity.
