employment discrimination based on immigration status

[imm_dis]

What is the name of your state? New Jersey

I came to United States on a F-1 visa and got married to a U.S. citizen. Based on my marriage, I have a EAD card which authorizes me to work in the United States. My green card application is in process but I DO NOT have the green card right now. I got a job in a well-know IT company in New Jersey. My hiring manager told me that they have made the decision to hire me but they want me to fill out the application before they make me an official offer. In the application, I explained them the situation that I am not a permanent resident because I do not have the green card right now but I do have the EAD card. My hiring manager told me that he cannot make me an offer based on the fact that I do not have the green card at the moment. My EAD card expires in November, 2005 and they do not want to take a risk with me as in the future they might have to sponsor me. He told me that to hire me he will have to make a "foreign national offer justification" and he cannot justify hiring me as the position was a entry level position ( at bachelor's level). He said that it is their own internal policy. Is it legal for a company to apply this policy to a EAD card holder? Can I be denied employment based on the fact that I do not have the green card at present but have the EAD card which authorizes me to work in United States? Am I being discriminated against. If yes, then which anti-discrimination law can I file my case under? I read that IRCA's anti-discrimination provision prohibits discrimination against “protected individuals,” who include citizens or nationals of the United States, permanent residents, lawful temporary residents, refugees, and asylees. I do not come under any of these categories. Can I still file a discrimination case against my employer? I would really appreciate if you can please answer my questions so that I can be sure if I have been discriminated against or not and which discrimination law applies to me.

 

[Beth3]

While an employer cannot deny you employment because you are of a different national origin, they can deny you employment because you are only available for work for eight months. I seriously doubt they'd hire a U.S. born job applicant for this position who was only available for work until November. I wouldn't do so unless it were a limited-term position.

I don't see that this employer is violating any discrimination laws or INS regulations. It's not your national origin that at issue - it's your on-going availability for work.

 

[imm_dis]

Reply to Beth

But the I-9 form states " Employers CANNOT specify which document they will accept from an employee. The refusal to hire an individual because of a future expiration date may also constitute illegal discrimination." Work Authorization Card (EAD) is listed as one of the acceptable documents on the I-9 form. In this case, is it a discrimination or not when the employer asked me for a Green card instead of a EAD card.

 

[imm_dis]

But.....

Is it lawful for the employers to ask how I am legally authorized to work in the United States during the application process? When recruiting or hiring are employers allowed to legally discriminate between different types of workers who are legally authorized to work in U.S.( i.e. US citizens, permanent residents,asylees, refugees, EAD holders). If the employer does not have the right to reject asyless and refugees who have temporary work authorization, how can they reject a EAD card holder just because he/she has a expiration date.

 

[Beth3]

Yes, I understand that an employer cannot insist upon what type of documentation they wish to see for I-9 purposes. This has nothing to do with the type of work authorization document(s) you've presented.

It has entirely to do with the fact that at the present time, you are only available for work for the next seven to eight months. It's no different than if you were a U.S. born citizen and were planning on moving to another State come November and therefore would not be available for work beyond that month. This employer is looking to hire someone available for work on an on-going indefinite basis. That is not you.

If I have a regular full-time basis, I wouldn't hire someone who was only going to be available for work until the fall. Why would I invest in training someone for a number of months, knowing I will have to replace them and start the training process all over again. That is costly to the employer and does not make good business sense.

As I said above, this does not appear to have anything with your national origin. It has to do with the fact that you at the present time, you are only available for work for a limited period of time.

I don't know if you aren't seeing the point or if you're refusing to see the point.

 

[imm_dis]

reply to Beth

Thank you for replying to my post. I understand what you are trying to say. But I am not available to work only till November. My EAD card is renewable. Besides that I have a interview for the Green Card on 28th March. So most likely I am going to get the green card at that time. So should I still be seen as someone who can work only till November. Besides that, the employer was willing to hire asylees and refugees for the same position and they do not have a indefinite period of employment authorization either.

 

[Beth3]

My EAD card is renewable. Now that's certainly pertinent information that you didn't mention until now. Have you informed the employer of that? How long is it renewable for?

Besides that I have a interview for the Green Card on 28th March. So most likely I am going to get the green card at that time. Perhaps that's a fair assumption but it's not guaranteed.

So should I still be seen as someone who can work only till November. The green card is not a sure thing. If your EAD card is renewable, that may make a difference depending on how long it can be renewed for and whether renewal is assured.

Besides that, the employer was willing to hire asylees and refugees for the same position and they do not have a indefinite period of employment authorization either. But there's a big difference between, for example, hiring someone with an H1B who's available for up to six years and someone who's only available for six months. This statement makes it very unlikely the employer is engaging in any national origin discrimination.