Recruiting and Hiring Temporary Visa Holders
Pre-Employment Questions for Job Applicants and Employers’ Duty to Sponsor
Departments seeking to hire candidates who are not U.S. citizens or permanent residents, and who seek employment in the U.S. under the terms of a temporary, nonimmigrant visa (i.e. H-1B), should be aware of the anti-discrimination provisions of the Immigration and Nationality Act (INA) (see 8U.S.C. §1324(b)).
Those provisions prohibit four types of conduct
- citizenship or immigration status discrimination
- national origin discrimination
- unfair documentary practices during employment eligibility verification (Form I-9) process (document abuse)
- retaliation for filing a charge or asserting rights under the anti-discrimination provisions
Citizenship status discrimination: protected individuals (U.S. citizens, permanent residents, and documented immigrants such as asylees and refugees) are not hired because of their real or perceived immigration or citizenship status, or because of their type of work authorization
This prohibition does not extend to discrimination that is otherwise required in order to comply with law, regulation, executive order, or federal, state, or local government contract (see 8 U.S.C. §1324 b [a][c]).
All work-authorized individuals, including many nonimmigrant visa holders, are protected under the INA’s prohibitions against national origin discrimination and document abuse (see 8 U.S.C. §§1324 b [a][A] and [a] ) - even though work-authorized visa holders are not protected from citizenship status discrimination
- Requests to produce a particular document or documents in order to confirm visa status or requests for specific documents to establish employment eligibility might be the basis of an applicant’s claim of document abuse
If applicants believe that they were rejected for employment on the basis of national origin, they may allege national origin discrimination
Recruiters may ask the following questions during the pre-employment stage:
Will you now or in the future require sponsorship for employment visa status (e.g. H-1B)?
Are you currently authorized to work in the U.S on a full-time basis without restriction?
Recommended by the U.S. Department of Justice Civil Rights Division - Office of Special Counsel for Immigration Related Unfair Employment Practices, which enforces the anti-discrimination provisions of the INA.
Employers Duty to Sponsor
According to the Office of Special Counsel
- employers may decide to do the following without violating federal anti-discrimination statutes
- not to recruit
- to hire individuals based solely on their need for visa sponsorship now or in the future
- a decision not to hire an applicant needing sponsorship based on the employer’s financial obligation associated with sponsorship is not considered discriminatory
- such decisions must be made without the intent to discriminate against the applicant based on their national origin or to retaliate against a person for activity protected under federal law
- an employer has no duty to sponsor or hire people who will need sponsorship in the future
an employer may draw lines in its decision-making that are more favorable to certain individuals
Example: Some individuals may not need sponsorship at the time because their student status or another path authorizes them to work; however, they will need sponsorship sometime in the future
In this case, an employer can make any decision on whether to hire the individuals, including the decision to hire them and then terminate employment once they are no longer authorized to work (employer would have no duty to sponsor the individual when the time comes)
Special Counsel has advised that employers may
- choose to exclude all candidates needing sponsorship
- notify prospective job applicants in job postings that they are unwilling to sponsor nonimmigrant visas by using the following language: “This position is not eligible for immigration sponsorship”
For questions regarding permissible interview questions for non-U.S. citizen candidates, please contact HR Compliance and Immigration Services at email@example.com or call 434.243.2031.