When preparing a job posting it’s not unusual (as Tom Jones sang) that an employer might like to limit the number of applicants applying for the position. Just the other day I was asked on separate occassions whether a job posting could limit the position to international candidates with valid work authorization OR to U.S. citizens. I’ve heard different variations of these questions and I always urge extreme caution to employers when using any such wording as such language could run afoul of the anti-discrimination provisions of the Immigration and Nationality Act (INA), specifically section 274B. These provisions prohibit hiring, firing, recruitment or referral for a fee, as well as unfair documentary practices during the form I-9 process, on the basis of citizenship, immigration status or national origin.
You might be asking yourself, are there instances in which an employer could insert restrictive language in a job posting? Yes, but they are very limited. One instance is when the government tells you to do so. In other words, if you are required in order to comply with law, regulation, or executive order, or required by Federal, State, or local government contract, or for which the Attorney General determines it to be essential for an employer to do business with an agency or department of the Federal, State, or local government.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to a letter regarding a situation where an employer could state in a job posting that the employer can only consider U.S. citizens. OSC recommends notifying applicants that the position is limited to U.S. citizens pursuant to a government contract, assuming that is the case, and suggested the following language in those instances, “Please note that pursuant to a government contract, this specific position requires U.S. citizenship status.”
The takeaway here is that employers must be mindful of the anti-discrimination provisions of the INA and realize that just because something sounds good from an efficiency point of view, it may in fact be unlawful. And for those of you who know Tom Jones’ music, I’m not dating myself as I was a mere child when I listened to his music on a record.