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Foreign-born workers make up nearly 20% of the U.S. labor force, according to the latest data from the Bureau of Labor Statistics. Despite being an indispensable part of industries like health care, construction and food service, they often face uncertainty when it comes to workplace rights.
As immigration policies become more restrictive under the administration of Donald Trump, many job seekers are left unsure of what they’re legally required to share. Can an employer ask where you’re from? Do you have to reveal your immigration status during an interview? Here’s what experts say.
[Read: Things Your Boss Can’t Legally Do.]
Can Employers Ask Immigration Questions During Hiring?
Employers cannot directly ask about a job applicant’s specific immigration status during an interview, according to Michelle Marty, immigration attorney and managing member at Estrada-Marty LLC. But they are permitted to ask whether the applicant is legally authorized to work in the U.S.
“Asking whether someone is a U.S. citizen or what visa they’re on can violate anti-discrimination provisions under the Immigration and Nationality Act unless the job has a legal requirement for U.S. citizenship — for example, certain federal positions,” she wrote in an email.
Additionally, employers can ask limited-scope questions about whether an individual now or in the future will require visa sponsorship prior to extending an offer of employment. “Do you now or will you in the future require visa sponsorship?” is generally a permissible question, whereas questions like “Are you a citizen?” or “Where were you born?” could be considered discriminatory.
The law also sets clear boundaries on the circumstances in which these questions can be asked. “Employers should not be taking further steps to verify an individual’s work authorization before extending an offer of employment and should not be asking questions beyond screening for the need for visa sponsorship,” wrote Dana DiRaimondo, business immigration attorney at DiRaimondo & Schroeder LLP, in an email.
What to Do If You’re Asked an Illegal Immigration Question During an Interview
Being asked about your citizenship or place of birth during a job interview can catch you off guard, but you’re not powerless in that moment. If the question seems too personal or inappropriate, you’re not obligated to answer directly. A simple response like, “I’m authorized to work in the U.S.,” is typically enough to move the conversation forward without getting into specifics. You can also steer the conversation back to your qualifications or experience to keep the focus where it belongs.
If the question still troubles you after the interview, document what happened. If needed, you can consider taking further action, such as filing a complaint. Remember that you have the right to be treated fairly in the hiring process — no one should make you feel otherwise.
[Read: What Is Anti-DEI Hiring?]
What Rights Do Undocumented Workers Have in the Hiring Process and on the Job?
Although immigration law restricts undocumented individuals from being lawfully employed, DiRaimondo says they may still be protected under certain federal and state employment laws.
“For example, some labor laws may entitle them to receive minimum wage, overtime pay or workplace safety protections regardless of status,” she said. “They may also be protected from discrimination based on national origin and from retaliation for asserting certain workplace rights.” In other words, although immigration law prohibits unauthorized employment, it does not strip workers working in the country illegally of all workplace protections.
Still, because of their immigration status, workers without authorization to work in the U.S. may not have access to some protections, such as reinstatement to their position if they were fired unlawfully, DiRaimondo said.
What to Do If You’ve Been Treated Unfairly Based on Your Perceived Immigration Status
If you’ve been treated unfairly because of your perceived immigration status, Jennifer Behm, partner at Berardi Immigration Law, suggests filing a complaint with the Immigrant and Employee Rights Section of the U.S. Department of Justice or the Equal Employment Opportunity Commission, or EEOC.
Complaints can be filed by mail or in person at an EEOC office. You can find the EEOC office nearest to you by calling the EEOC at 1-800-669-4000, or by looking up the EEOC’s field office list and jurisdiction map. Check out the EEOC’s website for more information on how to file a complaint.
Once you file, these agencies will investigate discrimination based on your national origin and citizenship status, regardless of your immigration status.
If you’re a worker lacking permanent legal status who is reluctant to report workplace abuse because you fear immigration consequences or job loss, Behm says you shouldn’t worry since there are anti-retaliation protections. “Legal aid, advocacy organizations and certain federal agencies have implemented confidential complaint processes so that undocumented workers can come forward and report abuse without risking enforcement action,” she said in an email.
[Read: What Is a Toxic Work Environment — and How Can I Avoid It?]
Protecting Your Rights in the Workplace
Discrimination based on immigration status or national origin is illegal in many cases, even if you’re not a U.S. citizen. If you feel that you’ve been targeted, dismissed or treated unfairly because of how you look, speak or where someone assumes you’re from, don’t ignore it or assume nothing can be done.
You can file a charge with the EEOC or reach out to an employment or immigration attorney for guidance on your rights and options. Taking action not only protects you but promotes a safer, more equitable workplace for everyone.
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Can an Employer Ask About My Immigration Status? originally appeared on usnews.com
