With the current big tech firing frenzy I'd like to know if a US company must prefer the US citizens over working visa holders during mass lay offs?

Let's say if there are 2 software developers but one is an immigrant, a working visa holder and the second is a citizen. They are both at the same level, professionally.

Must the American companies prioritize citizens in keeping them hired and let the foreign nationals go?

I know when a company sponsoring working visas they must prove the need and show they aren't able to source workers inside the US prior to getting the visas for the foreign candidates. So logically, it might follow that they should also priorities the citizens in case of mass lay offs. Can a company be sued by a citizen for keeping the foreign national if he can prove the wrong doing?

Is there any reference in working visas(i.e.H1B) application saying something that in case of mass lay offs these conditions can happen?

1 Answer 1


There is no law in the US that mandates hiring preference for US citizens over others. Such a preference would be "national origin discrimination", which

involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).

Preferring US citizens entails dispreferring others, such as some of those who come from another country. The Immigration Reform and Control Act of 1986 makes it illegal for an employer to discriminate with respect to hiring, firing, or recruitment based upon an individual's citizenship or immigration status.

An employer is however allowed, indeed required, to obey any overriding federal law, for example they can refuse to hire a person who has no legal right be being employed because their visa does not allow employment.

  • 2
    Doesn't the sponsorship condition then go against this Act 1986? Here: abogadoray.com/practice-areas/immigration/h1b-visas/… says: The sponsoring company or employer must also prove that there is a lack of U.S. citizens applying for the job in question.
    – Grasper
    Feb 2, 2023 at 17:07
  • 5
    Not fully correct. Certain kinds of visas require a representation that you couldn't find a U.S. citizen or permanent resident to fill the job, most notably, H1-B visas. This said, once a visa is granted, I don't believe that there is a corresponding preference in layoffs, although this could affect the next round of visa applications.
    – ohwilleke
    Feb 2, 2023 at 17:44
  • 2
    But many US citizens are also "originally" from a foreign country. If they are not discriminating against US citizens who are also from the same foreign country as the non-citizen being discriminated against, then this is not "national origin discrimination", but rather "citizenship status discrimination".
    – user102008
    Feb 6, 2023 at 19:17
  • 4
    Citizenship status discrimination in employment is illegal in federal law (specifically INA 274B(a)(1)(B), or 8 USC 1324b(a)(1)(B)), but only when the discrimination is against a US citizen, US national, permanent resident (i.e. green card holder), temporary resident (an obsolete status from the 1986 amnesty), asylee, or refugee. It is not illegal to discriminate based on citizenship status against people in other worker statuses.
    – user102008
    Feb 6, 2023 at 19:20
  • So the answer would be that these employees may be fired first because of their status, but there is no requirement?
    – gnasher729
    Jul 26, 2023 at 17:27

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