Abstract

Excerpted From: A. Nicole Kreisberg, Preference or Penalty? The Law and Employers' Diverging Hiring Intentions of Latino Immigrants, 50 Law and Social Inquiry 569 (May, 2025) (2 Footnotes/References) (Full Document Requested)

Recruiting immigrants for US jobs has been a long-standing policy issue for employers and the US economy. And in recent decades, despite more restrictive laws toward immigration and lower caps on recruiting foreign-born workers for specialized jobs, employer filings for immigrant labor certifications have only increased . Given employers demand immigrant workers, even when native-born unemployment rates are high, some scholars suggest that employers might simply prefer immigrants over native-born workers. Yet it remains unclear whether or why employers might prefer or penalize immigrants over native-born workers when hiring. Some evidence suggests that immigrants face a hiring penalty compared to comparably educated, co-ethnic native-born workers. But other evidence demonstrates that employers might actually prefer immigrants over native-born workers, particularly for their least desirable, most underpaid and exploitative positions.

However, the existing data on which these findings are based do not entirely permit us to understand whether immigrants face a hiring premium or penalty. First, most studies rely on either quantitative, survey-based data or qualitative, ethnographic, or interview-based data alone, which makes it challenging to understand the mechanisms underlying any premiums or penalties, or the generalizability across geographic or labor market contexts. In addition, existing evidence largely relies on data collected from single firms or industries, with some evidence centered in higher-wage technology or STEM jobs and other evidence collected in services, manufacturing, or trades jobs. This prohibits understanding whether any hiring premium or penalties are more accurately driven by patterns of labor market segmentation. Finally, many of these studies generate data from workers, not employers, which makes it hard to understand employers' underlying motivations when hiring. Those studies that do use employer-level data have little to no heterogeneity by firm actor, despite the large body of organizational literature which makes it clear that employers have vastly different motivations when hiring depending on their role. The ways in which real employers across labor market segments interpret nativity status when expressing their hiring intentions, especially taking into account their occupational position within firms, is important to understand how organizations mediate the role of immigration laws on immigrant integration and workplace inequality.

Given Latinos are the largest immigrant group in general and the fastest-growing immigrant group with higher education in particular, this article uses a mixed-methods approach to understand whether and why employers prefer or penalize immigrants over native-born Latino male workers with college degrees when hiring. Unlike most existing studies, I collect unique data on employers by drawing on an original national survey experiment of 1,515 employers who make hiring decisions across labor market segments and industries. I find that employers' hiring intentions toward immigrants vary depending on their occupational role. Organizational and team leaders, including business owners, executives, and upper-level managers, intend to hire (and often prefer) immigrants over native-born Latinos, regardless of their legal status. But Human Resources (HR) professionals tend to exclude immigrants over native-born Latinos, particularly undocumented Latinos. What explains these diverging hiring intentions? Drawing on in-depth interviews with forty-seven of these employers and immigration lawyers, I find that immigration laws provide organizations with wide latitude to interpret the law. As such, employers' hiring intentions vary based on their awareness of immigration law and their professional interests. Organizational and team leaders, for example, have little awareness of the detailed complexities of immigration law. In addition, they face external pressure to hire immigrants so they and their firms look good. HR staff, conversely, have a higher awareness of immigration law. In addition, they have more internal pressure to exclude immigrants, often perceived to be “bad hires,” who could cost them their own jobs because immigrants might be deported. HR staff reframe their exclusionary hiring intentions as legal strategies to mitigate risk and administrative burden.

This study makes several theoretical contributions. First, the results build on the immigration literature by finding that employers' diverse motivations help explain immigrant hiring inequality, even beyond patterns of labor market segmentation. Second, legal endogeneity theories suggest that the law in action often differs from the law in the books because laws are ambiguous. This study emphasizes that ambiguity also leaves room for intra-organizational factors, like occupational role, to impact organizational behavior. And finally, in evaluating workplace inequality, many organizational studies examine factors between organizations rather than within them. Although between-firm dynamics are important mechanisms of workplace inequality, this article is important because it finds that, in the case of immigration, employers' occupational roles inside of firms help mediate the influence of the law on immigrant inequality. In this sense, organizations may amplify immigrant hiring inequality and complicate existing legal solutions to ameliorate it.

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Ultimately, these results emphasize the importance of studying organizations for immigrant workplace inequality, and they also underscore that organizational research would benefit from moving beyond theories of ethno-racial stratification to theories of immigration and the law. Legal ambiguity and organizational structure, which dictate actors' legal awareness and professional interests both within and across firms, are incredibly important, both for the implementation of the law in practice as well as for the unequal allocation of organizational resources in action.

Dr A. Nicole Kreisberg is an Assistant Professor of Public Policy and Sociology at Penn State University.