Dear _____,
Thank you for reaching out to NILC on this important issue. Apologies for the long email, but I want to cover all of the questions that you emailed. As I understand it, your question is whether a prospective employer can refuse to hire a DACA recipient on the basis that she is not a U.S. citizen or permanent resident. The short answer to this question, unfortunately, is that--with some limited exceptions--the law does not prohibit an employer from discriminating against job applicants on the basis of citizenship or immigration status in the hiring process.
First off, I reviewed the list-serve posting by "Dark Apotheosis" that you provided and it is basically correct. Nice work, Dark Apotheosis!
Federal law prohibits discrimination in hiring against U.S. citizens, legal permanent residents, temporary residents, asylees and refugees based on their citizenship or immigration status. Unfortunately, DACA recipients do not fall within any of these protected categories. (DACA recipients are not considered "temporary residents" as specifically defined by federal law.) Therefore, DACA recipients would not be protected, during the hiring process, from discrimination based on their EAD or immigration status.
DACA recipients, though, are protected from other forms of discrimination. Federal law makes it illegal for an employer (with at least 4 employees) to treat workers differently based on their national origin when hiring. Therefore, as "Dark Apotheosis" suggests, an employer who hires DACA recipients from one country, but refuses to hire DACA recipients from another country may violate this provision of the law.
DACA recipients are also protected from document abuse. This means that an employer (of 4 or more employees) cannot:
--ask DACA recipients for more proof of identity or work authorization than the Form I-9 requires;
--ask DACA recipients for specific identity or work authorization documents, but instead must allow the worker to select which documents to show from the approved list of documents in the I-9 instructions;
--refuse to accept identity or work authorization documents from a DACA recipient that appear to be genuine.
Finally, federal law prohibits an employer from retaliating (or taking negative action) against a DACA recipient for asserting his or her rights under the anti-discrimination provisions described above.
The federal agency that enforces the anti-discrimination provisions above is called the Office of Special Counsel for Immigration-Related Employment Practices (or OSC for short). If you or anyone you know has questions about the anti-discrimination provisions above, or think that you have been discriminated against, you should call OSC's free worker hotline at 1-800-255-7688. Our experience has been that OSC does a good job answering workers' questions and helping qualified workers who have experienced discrimination. Be aware that you must make a claim of discrimination with OSC within 180 days from when the discrimination happened.
NILC has also created a FAQ on workplace rights and DACA, which may answer other DACA workers' rights questions that come up. The FAQs can be found here: http://www.nilc.org/dacaworkplacerights.html
I hope this answers your questions. Please let me know if you have other questions. Feel free to share this information with your DACA network and allies.
Sincerely,
Joshua Stehlik | Workers' Rights Attorney
National Immigration Law Center
3435 Wilshire Blvd, Suite 2850
Los Angeles, CA 90010
t: 213.674.2817 | f: 213.639.3911 | e: [email protected]
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