Employers often wonder what questions they may ask of foreign national job candidates that will allow employers to confirm the candidate's authorization to work while not at the same time exposing themselves to a claim of unlawful discrimination. The Immigration Reform and Control Act of 1986 (IRCA) protects foreign nationals from two types of discrimination: (1) citizenship discrimination; and (2) national origin discrimination. Only U.S. citizens, permanent residents, temporary residents, asylees, refugees, and conditional permanent residents (the "protected class") are protected from citizenship discrimination, while U.S. citizens, permanent residents and, all work authorized foreign nationals are protected against national origin discrimination.
It is not illegal to ask questions about immigration status, nor is it illegal for employers to refuse to hire a foreign national who requires work visa or immigration sponsorship. However, because it is illegal to discriminate against the protected classes defined in IRCA, employers may have legitimate concerns about asking questions relating to immigration status, which may lead rejected candidates to perceive that they were discriminated against and to file a discrimination claim with the U.S. Department of Justice. The Office of Special Counsel for Immigration-Related Employment Practices (OSC) has historically allowed only the following two questions to be considered "safe" and non-discriminatory:
- Are you legally authorized to work in the United States?
- Will you now or in the future require sponsorship for employment visa status?
Some employers have found these questions to be inadequate in determining whether a job applicant requires sponsorship and, in certain situations depending on their status in the U.S., job applicants have misinterpreted the questions. However, the OSC has recently stated that the following detailed question would not trigger citizenship status discrimination:
For purposes of the following question, "sponsorship for an immigration-related employment benefit" means "an H-1B visa petition, an O-1 visa petition, an E-3 visa petition, TN status and 'job flexibility benefits' (also known as I-140 portability or adjustment of status portability) for long-delayed adjustment of status applications that have been pending for 180 days or longer." (Please ask us if you are uncertain whether you may need immigration sponsorship or desire clarification).
QUESTION: Will you now or in the future require sponsorship for an immigration-related employment benefit