Employment of Noncitizens

Considerations
Several factors determine whether a Federal agency may employ a noncitizen. They are: Executive Order 11935 requiring citizenship in the competitive civil service, whether the position is in the competitive service, the excepted service or Senior Executive Service, the annual appropriations act ban on paying aliens from many countries, and the immigration law ban on employing aliens unless they are lawfully admitted for permanent residence or otherwise authorized to be employed.

Executive Order 11935 on the Competitive Civil Service
Under Executive Order 11935, only United States citizens and nationals (residents of American Samoa and Swains Island) may compete for competitive jobs. Agencies are permitted to hire noncitizens only when there are no qualified citizens available. A noncitizen hired in the absence of qualified citizens may only be given an excepted appointment, and does not acquire competitive civil service status. He or she may not be promoted or reassigned to another position in the competitive service, except in situations where a qualified citizen is not available. The noncitizen may be hired only if permitted by the appropriations act and the immigration law.

Excepted Service and Senior Executive Service
Some Federal agencies (among them the United States Postal Service, the Tennessee Valley Authority and the Federal Bureau of Investigation), and some types of positions (for example, lawyers and chaplains) are excepted from OPM procedures for filling jobs. (Federal Employment Factsheet number 6 (EI-6) addresses the topic of "Excepted Service Employment.") An agency may hire a qualified noncitizen in the excepted service or Senior Executive Service, if it is permitted to do so by the annual appropriations act and the immigration law.

Many agencies have executive level positions in the Senior Executive Service.

Appropriations Act Restrictions
Congress prohibits the use of appropriated funds to employ noncitizens within the United States. Certain groups of noncitizens are not included in this ban.

They are:

• Persons who owe permanent allegiance to the United States (for example, natives of American Samoa and Swains Island).
• Aliens from Cuba, Poland, South Vietnam, countries of the former Soviet Union, or the Baltic countries (Estonia, Latvia, and Lithuania) lawfully admitted to the United States for permanent residence.
• South Vietnamese, Cambodian or Laotian refugees paroled into the United States after January 1, 1975.
• Nationals of the People's Republic of China who qualify for adjustment of status pursuant to the Chinese Student Protection Act of 1992.
• Citizens of Ireland, Israel, or the Republic of the Philippines.
• Nationals of countries currently allied with the United States in a defense effort, (as determined by the Office of the Assistant Legal Adviser for Treaty Affairs, Department of State).
• International broadcasters employed by the U.S. Information Agency.
• Translators employed temporarily.
• People employed up to 60 days on an emergency basis in the field service.

Although the above groups are not prohibited from being paid from agency appropriated funds, group members are still subject to the requirements of Executive Order 11935 listed above and to the immigration law as specified below.

Immigration Law Requirements on Employing Citizens and Aliens
For any work to be performed in the United States, immigration law requires private and public employers to hire only individuals who are eligible to be employed. Those individuals are:

• a citizen (either by birth or naturalization) or national of the United States,
• an alien assigned by the Immigration and Naturalization Service (INS) to a class of immigrants authorized to be employed (aliens who are lawfully admitted for permanent residence by INS are the largest class of aliens in this category), or
• an individual alien who is expressly authorized by INS to be employed.

Although an alien may be authorized to work under the immigration laws, he or she is still subject to the requirements of Executive Order 11935 and appropriations act restrictions as stated above.

Employment Inquiries
A noncitizen should contact the agency in which he or she is interested, concerning questions of employment eligibility.

AS OF: 08-15-02

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