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May Employers Require Job Applicants to be only U.S. Citizens or Lawful Permanent Residents?

Under the Immigration Reform and Control Act of 1986 (IRCA), limiting employment to U.S. citizens or lawful permanent residents (green card holders) can be a violation of law. Under IRCA, the protected class of individuals who generally may not be discriminated against in hiring, termination, and recruiting, or referring for a fee consists of U.S. citizens, lawful permanent residents, "temporary residents" (a term of art that applies to almost no one anymore), and refugees and asylees. The U.S. Department of Justice Best Practices page offers the following guidance:

"Do avoid the following language in job postings:
 

  • 'Only U.S. Citizens'
  • 'Citizenship requirement'*
  • 'Only U.S. Citizens or Green Card Holders'
  • 'H-1Bs Only'
  • 'Must have a U.S. Passport'
  • 'Must have a green card'

* UNLESS U.S. citizenship is required by law, regulation, executive order, or government contract."
While the "unless" language above may be a basis for restricting employment to U.S. citizens or lawful permanent residents, you must determine whether the restriction is required "by law, regulation, executive order, or government contract." For example, an employer may impose this limitation if the employment must be compliant with the International Traffic in Arms Regulations (ITAR)--regulations that control the export and import of defense-related articles and services on the U.S. Munitions List.
 

© 2009 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume , Number 318
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Gregory Adams Dinsmore Law Immigration Attorney Higher Ed Lawyer
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For more than 30 years, Greg Adams has counseled large and small domestic and international businesses, educational institutions, non-profit entities, investors, professional athletes, professors and researchers in all aspects of business-immigration and related laws. He has represented bi-coastal and other high tech clients in immigration matters, has helped companies to develop balanced immigration policies, and has architected legal and practical measures to handle large volumes of cases. Over the past two decades, Greg has developed novel approaches to challenging...

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