The Federal Government gives strong priority to hiring United States citizens and nationals, but non-citizens may be hired in certain circumstances. Agencies considering non-citizens for Federal employment in the competitive service must follow usual selection procedures and also meet the requirements of all three of the following: immigration law; an appropriations act ban on paying certain non-citizens; and an executive order restriction on appointing non-citizens in the competitive service. In addition, agencies are responsible for applying any citizenship requirements that may appear in their individual agency's authorization and appropriation laws.
The Federal Government gives strong priority to hiring United States citizens and nationals, but non-citizens may be hired in certain circumstances. Agencies considering non-citizens for Federal employment in the competitive service must follow usual selection procedures and also meet the requirements of all three of the following:
Agencies considering non-citizens for Federal employment in the excepted service and Senior Executive Service must meet the requirements of the top two above. In addition, agencies are responsible for applying any citizenship requirements that may appear in their individual agency's authorization and appropriation laws.
Since the passage of the Immigration Reform Act of 1986, employers have been responsible for ensuring that the people they hire are eligible to work in the United States. Employers and all new employees are required to complete a Department of Homeland Security (DHS), U. S. Citizenship and Immigration Services, Form I-9 (Employment Eligibility Verification) and employers (appointing officials) must check employees' documents to verify employment eligibility. The Immigration and Nationality Act of 1990 added other requirements. One of those requirements is that employers may not discriminate against employees by requesting more or different documents than are required. The Immigration and Nationality Act, as modified, provides at title 8, United States Code (U.S.C.), section 1324a, that it is unlawful for a person or other entity to employ an unauthorized alien. In 1996, Public Law 104-208 added a statement that ". . . the term 'entity' includes an entity in any branch of the Federal Government."
Regulations that implement immigration laws are published in title 8 of the Code of Federal Regulations (CFR). According to 8 CFR 274a, U.S. employers may only hire an individual who is:
For more detailed information about employer and employee responsibilities under United States immigration law, please contact the U.S. Citizenship and Immigration Services, DHS.
For every year since 1939, the Congress has placed language in annual appropriations laws to prevent the use of appropriated funds in the continental United States to pay Federal employees unless they are United States citizens or meet one of several exceptions. It is the responsibility of each agency to apply the terms of this law. No authority is given to the Office of Personnel Management to regulate, enforce, or grant exceptions to the ban.
Current appropriations law prohibits an agency from using appropriated funds to pay the compensation of any officer or employee of the Government of the United States (including any agency the majority of the stock of which is owned by the Government of the United States) whose post of duty is in the continental United States unless such person:
The ban does not apply to citizens of Ireland, Israel, or the Republic of the Philippines, or to nationals of those countries allied with the United States in a current defense effort, or to international broadcasters employed by the United States Information Agency, or to temporary employment of translators, or to temporary employment in the field service (not to exceed 60 days) as a result of emergencies.
Notes on the Appropriations Act Ban
The term "continental United States" includes all states except Hawaii. Note that Civil Service Rule VIII provides separate authority to appoint non-citizens in overseas positions. "Overseas positions" are defined for this purpose as ". . . positions in foreign countries and in other areas beyond the continental limits of the United States, except as provided in section 8.4."
Excerpt from 5 CFR 8 Appointments to Overseas Positions.
Sec. 8.3 Appointment of persons not citizens of the United States.
Persons who are not citizens of the United States may be recruited overseas and appointed to overseas positions without regard to the Civil Service Act.
Sec. 8.4 Positions excepted from the application of this part.
This part shall not apply to positions in Hawaii, Puerto Rico, the Virgin Islands, and Alaska, and on the Isthmus of Panama.
Executive Order 11935 (September 2, 1976) restricts the employment of non-citizens into "competitive service" positions covered by title 5 of the U.S. Code. This applies to all agencies with competitive service positions, any place in the world. The Executive order amended Civil Service Rule VII to include the following section:
Excerpt from 5 CFR 7 General Provisions
5 CFR 7.3 Citizenship.
(b) No person shall be given any appointment in the competitive service unless such person is a citizen or national of the United States.
(c) OPM may, as an exception to this rule and to the extent permitted by law, authorize the appointment of aliens to positions in the competitive service when necessary to promote the efficiency of the service in specific cases or for temporary appointments.
The Executive order is also the basis for the following regulation:
5 CFR 338.101 Citizenship.
(b) A person may be given an appointment in the competitive service only if he or she is a citizen of or owes permanent allegiance to the United States. However, a non-citizen may be given an appointment in rare cases under section 316.601 of this chapter, unless the appointment is prohibited by statute.(c) Paragraph (b) of this section applies to reinstatement and transfer as well as to other noncompetitive appointments, and to conversion to career or career-conditional employment.
Notes on the Executive Order Restriction, 5 CFR 7.3, and 5 CFR 338.101
Under the Executive order provision that permits the Office of Personnel Management to make exceptions to the Executive order ban, the only exception referenced in the regulation at 5 CFR 338.101 is an appointment under 5 CFR 316.601, "Appointment without competitive examination in rare cases." Such appointments are truly rare. However, if agencies find no qualified citizens available to fill a competitive service position, and if they meet all of the requirements of the appropriations ban and immigration rules, they may hire a non-citizen under a special Schedule A excepted appointment, authorized by 5 CFR 213.3102 (bb). The position that is filled this way is withdrawn from the competitive service for the period it is filled by the non-citizen. The excepted appointment does not give the employee eligibility for any other job. He or she may not be promoted or reassigned to a position in the competitive service, except in situations where a qualified citizen is not available and a Schedule A appointment is again used.
Excerpt from the listing of excepted Schedule A appointments in 5 CFR 213.3102
(bb) Positions when filled by aliens in the absence of qualified citizens. Appointments under this authority are subject to prior approval of the Office [of Personnel Management] except when the authority is specifically included in a delegated examining agreement with the Office.