Executive Summary
- The Risk: The DOJ's Immigrant and Employee Rights Section (IER) is actively auditing companies for "Citizenship Status Discrimination." Recent settlements have included six-figure penalties for unlawful screening practices.
- The Trigger: Using automated filters to screen out non-citizens or posting jobs that say "U.S. Citizens Only" (unless legally required) can trigger an investigation.
- The Solution: HR must update job application questions and rejection scripts to focus on "sponsorship requirements" rather than "citizenship status."
What is Citizenship Status Discrimination?
For years, the biggest risk in immigration was the H-1B denial. In 2026, the risk has shifted to the job posting itself.
As companies tighten budgets, many Talent Acquisition teams have implemented blunt filters to save time. They set their Applicant Tracking Systems (ATS) to auto-reject anyone who checks "No" on citizenship questions, or they add "Must be a U.S. Citizen" to job descriptions.
While this seems efficient, it is often illegal. Under the Immigration and Nationality Act (INA) § 1324b, it is unlawful to discriminate against "protected individuals" based on their citizenship status.
Who counts as a "Protected Individual"?
If your job posting says "U.S. Citizens Only," you are illegally discouraging other protected groups from applying. Under the law, "Protected Individuals" include:
- U.S. Citizens
- Lawful Permanent Residents (Green Card Holders)
- Asylees
- Refugees
(Note: There are limited statutory exceptions for specific government contracts, but for general corporate hiring, these groups share the same protections).
The 3 Most Common Hiring Compliance Traps
1. The "U.S. Citizens Only" Job Posting
Unless your contract explicitly requires U.S. citizenship by law (e.g., specific Defense Department contracts or nuclear energy roles), you cannot restrict hiring to citizens.
The Fix: Stop listing "U.S. Citizen" as a requirement. Instead, list "Authorization to work in the U.S. without restriction" as the requirement.
2. The "Green Card Expiration" Question
During the initial hiring or pre-screening phase, requesting to see a "Green Card" or asking for an expiration date is a violation known as "Document Abuse."
The Fix: Never ask a Permanent Resident for an expiration date or specific document during pre-hire screening. If they have the legal right to work, the specific document they choose to prove it (e.g., State ID + Social Security Card vs. Green Card) is their choice, not yours.
Note: This is distinct from I-9 reverification rules, which apply only after hire and only for certain temporary documents. Do not confuse strict I-9 maintenance with pre-hire screening.
3. The "Will You Sponsor?" Filter
You are allowed to decline to hire someone because they require sponsorship (like an H-1B or F-1 student). However, you must ask the question correctly to avoid discrimination claims.
- Bad Question: "Are you a U.S. Citizen?" (Illegal discriminator)
- Good Question: "Will you now or in the future require sponsorship for employment visa status (e.g., H-1B)?" (Legal work authorization check)
HR Scripts: How to Reject Candidates Compliantly
When you need to reject a candidate who requires sponsorship, or reject a U.S. worker in favor of a visa holder, your internal notes matter.
Scenario A: Rejecting a Candidate Because You Don't Want to Sponsor
You are allowed to have a "No Sponsorship" policy for certain roles. If an H-1B candidate applies and you reject them, be specific.
HR Script (Internal Note): "Candidate requires H-1B sponsorship. This position is not budgeted for immigration legal fees and filing costs. Rejection is based on sponsorship requirement, not nationality."
Scenario B: Rejecting a U.S. Worker When Planning a Green Card (PERM)
This is the danger zone. If you hire an H-1B worker over a qualified U.S. worker, it creates significant risk if you later decide to file for their Green Card.
In the specific context of the PERM Labor Certification process, you cannot reject a minimally qualified U.S. worker just because the H-1B worker is "better" or "more loyal." While standard hiring allows you to pick the best talent, PERM rules are different. If you hire a visa holder now but fail to document why the U.S. candidates lacked core skills, you may be unable to sponsor that employee for a Green Card in the future.
HR Script (Internal Note): "U.S. candidate lacked specific technical requirement [X] listed in the job description. Rejection is based on lack of core skill competency, not visa status of the competing finalist."
The "Goldilocks" Sponsorship Policy
To protect your organization, your career site needs a clear, uniform policy.
- Do Not Say: "We do not hire foreigners." (Discrimination)
- Do Not Say: "U.S. Citizens and Green Card holders only." (Discrimination against Asylees)
Do Say: "Employment eligibility to work with [Company Name] in the U.S. is required as the company will not pursue visa sponsorship for these positions."
This language focuses on the company's action (pursuing sponsorship) rather than the candidate's identity.
Frequently Asked Questions (FAQ)
Is it legal to post a job for "U.S. Citizens Only"?
Generally, no. Unless a specific law, regulation, or government contract requires U.S. citizenship for the role, you cannot exclude Permanent Residents, Asylees, or Refugees. Doing so violates the Immigration and Nationality Act.
Can I ask a candidate when their Green Card expires?
No. Asking for an expiration date or specific document during the hiring process can be considered "Document Abuse." You may only verify eligibility after an offer is accepted using the I-9 process, and the employee chooses which valid documents to present.
Can I reject a candidate because they need H-1B sponsorship?
Yes. An employer is not legally required to sponsor a visa. You may reject a candidate based on their need for sponsorship, but you cannot reject them based on their country of origin or citizenship status.
Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. Employment and anti-discrimination laws are complex and subject to enforcement trends by the DOJ and EEOC. We strongly recommend consulting with qualified labor and employment counsel to review your specific hiring practices and scripts.
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