Employment Authorization: Ask, But Ask Carefully (Part 2)

30 August 2012 Labor & Employment Law Perspectives Blog

As discussed on our Labor & Employment Law Perspectives Blog on March 12, 2012, it is a best practice to ask job applicants about their ability to work legally in the United States. While asking “are you authorized to work lawfully in the United States” is necessary, that question may not generate sufficient information. Some employers may not wish to commence (“sponsor”) an employment-based immigration case in order to fill the open position. Such employers may be frustrated when they learn only after hiring a candidate that he requires an H-1B case or other employment-based immigration case in order to work lawfully.Employers may avoid this surprise by asking a follow up question:

Are you authorized to work lawfully in the United States for [insert company name]? _____ Yes _____ No

Will you now or in the future require [insert company name] to commence (“sponsor”) an immigration case in order to employ you (for example, H-1B or other employment-based immigration case)? This is sometimes called “sponsorship” for an employment-based visa status.

_____ Yes _____ No

The Department of Justice’s Office of Special Counsel (OSC) enforces the antidiscrimination provisions of the I-9 employment eligibility verification law, and the OSC has confirmed that employers may ask questions similar to the two stated above. See OSC Technical Assistance Letter (Sept. 27, 2010), at pg. 2 (confirming that a company “may ask candidates for the position whether they will require sponsorship for a visa”) . If, however, an employer asks the second question, it should do so for all job applicants.

An employer has no legal obligation to commence an immigration case. Therefore, if the job applicant answers “yes” to the second question, the employer need not consider the applicant further. The employer may lawfully reject the job applicant because, if hired, that individual will ask the employer to take steps before the federal government to obtain authorization to employ him (an employment-based immigration case). This situation differs from one in which a job applicant has temporary work authorization that is independent of the employer and the applicant does not ask the employer to take on the legal obligation of an immigration case in order to employ him. The employer should not reject the job applicant simply because he has temporary work authorization. As stated on the Form I-9 instructions, “refusal to hire an individual because the documents presented have a future expiration date may . . . constitute illegal discrimination.”

It is important to understand the reason behind a lawful rejection of the job applicant. Otherwise, the employer may violate the antidiscrimination provisions of immigration and other federal laws.

Finally, if an employer does not wish to commence any employment-based immigration cases, the employer may make that announcement in its recruitment. The OSC has confirmed that an “employer may state in its job postings that it will not sponsor applicants for work visas.” OSC Technical Assistance Letter (Sept. 27, 2010), at pg. 2.

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