Equality in hiring permanent resident foreign nationals in the United States: when loyalty is the question, but not the issue

Abstract

Permanent resident foreign nationals, who have been legally admitted to the United States, have the right to work. However, when deciding the constitutionality of a state statute that requires citizenship for a public domain job, the rights of permanent residents to seek gainful employment are balanced against the rights of state governments to ensure that important sovereign functions are entrusted only to their citizens. Several important Supreme Court decisions have been 5/4 split decisions because of this tension and dissenting judges have countered that the majority rulings were based on presumptions, and not facts, that citizens are more loyal than permanent residents. The judges have also disagreed about the level, within a civil service hierarchy, below which a citizenship requirement is unconstitutional. This article reviews United States court decisions for relevant issues and solutions, and shows how empirical studies in the area of human resource management can help resolve the issues that have caused the dissent. The analysis will be useful to legal and human resource professionals in the U.S. and other countries affected by surging global migration. Copyright © 2002 John Wiley & Sons, Ltd.