​Legal Issues in Refugee Employment

Refugees are fully authorized by the U.S. Department of Justice to work in the United States.

Two key issues of importance to refugees, refugee employment service providers, and employers are documentation and legal protections against discrimination.

Refugees — including refugees per se, asylees, entrants and Amerasian immigrants — are issued a confusing array of documents by the U.S. Department of Justice which indicate status, employment authorization and dates and/or timeframes of the validity of the authorization documents.

The interpretation of these documents presents potential problems for employers, who are required to evaluate such documents and maintain records in accordance with the Immigration Reform and Control Act (IRCA) of 1986 and regulations prescribing employment authorization verification, data collection and retention using form I-9. Employers need to understand:

• How to interpret and process refugee documentation in respect to I-9 record-keeping requirements; and
• How the law protects refugees from discrimination in connection with hiring, retention, and termination.

As a further complication, interim regulations for I-9 procedures are currently in effect, but certain civil penalties are not currently being assessed, pending the issuance of final rules.

The PA Refugee Resettlement Program (RRP) advises employers to familiarize themselves with the applicable statutes and regulations and to keep informed regarding possible regulatory changes.

At the same time, the RRP urges employers to take advantage of the expertise of its employment service contractors, who are responsible for facilitating the hiring process on behalf of refugees in Pennsylvania.

Refugee Employment Authorization

Refugees are authorized to accept employment by the U.S. Department of Justice, pursuant to 8 CFR § 274a.12(3), (4), and (5).

A refugee's employment authorization commences upon his/her arrival in the United States, and is indefinite in duration. The documentation of refugee employment authorization, however, may be temporary in nature.

A refugee may be employed in any position, except for one which requires United States citizenship. The only positions offered by private-sector employers that might be subject to the requirement of U.S. citizenship would be those where the work being performed is under contract with the government and the position entails a possible security risk.

Form I-9 and Refugee Employees

Pursuant to the Immigration Reform and Control Act of 1986 (INA § 274B [8 U.S.C.1324b]), employers are required to verify both the employment authorization and identification of every applicant for employment. The results of the verification process are recorded on Form I-9, which is to be kept on file and available for inspection by the United States Citizenship and Immigration Service (USCIS).

Federal regulations set forth the types of documents that are acceptable for employment authorization verification, but the employer is expressly prohibited from demanding any particular document. For example, it is illegal for an employer to demand Form I-551 (a "green card") from a perspective "immigrant" employee.

Employers need to recognize that a refugee's employment authorization documentation, while it may differ from that of a U.S. citizen or lawful permanent resident ("green card" holder), is just as valid. Additionally, a refugee or asylee can meet the I-9 requirements without immigration documentation if they possess a Social Security card and Pennsylvania ID card.

Employers should periodically check news releases issued by the US Immigration and Naturalization Service and/or the National Immigration Law Center, in order to keep current with employment verification requirements for refugees.

Anti-Discrimination Statuses

Refugees are protected from discrimination by commonwealth and federal statutes, including Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.

In respect to employment, protection is afforded to refugees primarily through the Pennsylvania Human Relations Act and the federal Immigration Reform and Control Act of 1986.

Protections from Employment Discrimination for Refugees and Asylees

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), part of the Civil Rights Division at the U.S. Department of Justice, enforces the anti-discrimination provision of the Immigration and Nationality Act, 8 U.S.C. § 1324b, which may apply to you. The anti-discrimination provision protects employees against discrimination in hiring, firing, or recruiting or referring for a fee based on citizenship or immigration status or based on national origin; discriminatory documentary practices in the employment eligibility verification (Form I-9 and E-Verify) process; and from retaliation. The statute protects refugees, immigrants, and other work-authorized individuals from national origin discrimination by employers with between four and 14 employees, and from citizenship status discrimination by employers with four or more employees.

Refugees and asylees, as newcomers with unique work authorization documents, frequently experience unfair employment actions, such as:

• Termination from employment when Employment Authorization Documents (EADs) expire.
• Rejection of valid work authorization documents, such as unrestricted Social Security cards.
• Employers demanding to see a work authorization document with an expiration date.
• Delay in hiring for weeks or months while waiting for a Social Security card.
• Employer rejection of Form I-94 as a valid List A receipt for refugees or a valid List C employment authorization document for asylees, for I-9 purposes.

In addition, refugees and asylees, as well as their employers, are confused about the documents the U.S. government issues them. Many refugees and asylees are reluctant to exercise rights because of negative experiences in their country of origin.

How can OSC help?

• OSC offers training to workers and advocates on protections against employment discrimination based on immigration or citizenship status, or based on national origin.
• OSC accepts formal charges of employment-related discrimination.
• OSC operates a toll-free hotline. Through its hotline, OSC can often help save workers' jobs and educate employers about nondiscriminatory practices.

OSC's worker hotline is 1-800-255-7688 (V), 800-237-2515 (TTY) and language interpretation is always available. If you are interested in attending a training webinar or scheduling an in-person presentation, please visit OSC's webinar page on its website or call OSC's main number at (202) 616-5594 and ask to speak with OSC's public affairs specialist. Informational flyers, instructions on how to file a charge of discrimination, and a charge form available in several languages can also be found on OSC's website.