In the wake of September 11, many immigrants have experienced increased hostility or suspicion directed toward them in the workplace. Some U.S. employers are now more reluctant than ever to employ immigrants and temporary foreign workers. What many immigrants don't know is that such employer attitudes and policies often amount to unlawful employment discrimination under federal or state law.

The Immigration and Nationality Act requires U.S. employers to hire and retain workers who are authorized to work in the U.S., but it also protects immigrant workers from discrimination. Employers with more than four employees may not discriminate against an employee or job applicant because of his or her national origin or citizenship status. This means that an employer cannot fire, discipline, harass, refuse to hire or promote someone because they are from another country, look differently, dress differently, observe customs or associate with certain people on account of national origin.

Likewise, an employer cannot discriminate against anyone on account of his or her citizenship, with two notable exceptions. The first is where a federal, state or local law specifically requires employers to hire U.S. citizens for certain jobs (such as law enforcement positions). The second exception is that employers may hire, recruit or favor a job candidate who is a U.S. citizen over a non-citizen only if the citizen is equally or better qualified for the job. However, an employer cannot adopt a blanket policy of always preferring U.S. citizens. For instance, employment ads that say "U.S. Citizens only" are illegal if they discourage otherwise qualified non-citizens from applying for the job.

Although employers are not obligated to sponsor applicants for visas (such as the H-1B), employers cannot legally inquire about one's immigration status during a job interview or before they offer the candidate the job. Verification of identity and employment eligibility (through completion of Form I-9) is not required until the employee actually starts work. Within three days of starting work, the employee must show the employer his choice of document(s) that are listed on the I-9 form as acceptable to prove identity and employment authorization. The employer must accept any documents that reasonably appear on their face to be genuine. It is illegal for the employer to ask for a specific document (such as a "green card"). Furthermore, an employer may not refuse to hire someone because they have a temporary work permit (EAD) with an expiration date. However, the employer must re-verify employment authorization on the date of expiration, so it is important to make the necessary arrangements to maintain work authorization.

Individuals who believe they have been the victims of discrimination on the basis of citizenship or national origin may file a complaint with Department of Justice Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) or the Equal Opportunity Employment Commission (EEOC). If these agencies choose not to pursue the case, then a lawsuit can be filed against the employer. Employers found guilty of discrimination may be required to pay fines and penalties, hire or rehire the employee and/or pay back wages.

(Mr. Walters is the head of the Nonimmigrant Visa Division at The Bae Law Group, P.S. a Seattle law firm specializing in employment-based immigration law. This article addresses only a few of the most important Federal discrimination laws and is not meant to be exhaustive.)