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Employment Rights for Those Who Received Deferred Action

Since Congress has been unwilling to take up comprehensive immigration reform, the Obama administration instituted a deferred action program that grants temporary legal status to foreign-born individuals who entered the U.S. illegally as children and have remained here as contributing members of society. The deferred action order also allows those who qualify to obtain employment authorization. This means that thousands of people who previously worked sub rosa are now able to assert employee rights under state and federal law.

Employers cannot hire those who do not have authorization to work in the United States. But once a person has a valid Form I-9 indicating work authorization, it is unlawful for an employer to consider that person’s immigration status or national origin in making hiring decisions or setting the terms and conditions of employment. The Immigration Reform and Control Act of 1986 prohibits employers from considering citizenship or immigration status so long as the applicant has work authorization.

Those who are entering the legal workforce under the deferred action program should be aware of several facts:

  • Employers cannot require you to show additional proof of employment authorization beyond your I-9.
  • An employer cannot refuse to hire you because of a foreign accent so long as it does not seriously interfere with job performance.
  • An employer cannot institute an English-only language requirement unless it is necessary for workplace safety.
  • An employer can require English fluency as a condition of employment only if it is necessary to performance of the position’s essential functions.

If you have recently joined the workforce under deferred action and have experienced any type of discrimination based on your national origin or citizenship status, an employment discrimination attorney may be able to help.

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