For any business looking to employ foreign nationals, understanding the specifics of work authorization is critical. It’s vital to know that potential employees have the necessary legal documentation to work in the United States but, at the same time, you must also ensure you do not discriminate based on national origin during the interview process. As such, it’s important to have a clear understanding of the types of questions you can and cannot ask during the pre-offer and post-offer phases of the hiring process.
Work Authorization for Foreign Nationals
Foreign nationals can have different statuses that permit them to work in the U.S. Some individuals have permanent resident status (a “green card”) which authorizes work in the U.S. without restriction. Others may hold Employment Authorization Documents (EADs) for specific time periods, which can potentially be renewed. There are also those who do not currently have work authorization and depend on the employer petitioning for suitable employment-based immigration status.
The process for obtaining work authorization can vary in terms of time and complexity, depending on the type of immigration status the applicant qualifies for. 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 sponsor an employment-based immigration case for a position. Employers, understandably, may be frustrated when they learn only after hiring a candidate that they may later require sponsorship in the future to work lawfully. Employers may avoid this surprise by asking specific questions, but this must be done strategically.
Pre-Offer Phase: Enquiring About Work Eligibility
During the pre-offer interview process, employers are allowed to enquire about work eligibility. It’s crucial that these questions are phrased correctly to avoid discrimination. You can ask:
- Employment is subject to verification of an applicant’s identity and eligibility for employment as required by immigration laws:
- 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
Therefore, if the job applicant answers “yes” to the second question, the employer need not consider the applicant further.
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. If, however, an employer asks the second question, it should do so for all job applicants. An employer has no legal obligation to sponsor work authorization for a foreign worker.
Post-Offer Phase: Understanding Work Authorization or Visa Status
Employers can ask about an individual’s specific work authorization or visa status only after a job offer has been extended. If an applicant responds affirmatively to the initial question and you decide to extend a job offer, this offer should be contingent upon the individual possessing the appropriate work authorization and being able to maintain that authorization for the entire employment period.
If an applicant responds negatively to the initial question but shows interest in obtaining appropriate work authorization, you can guide them to resources that can assist in determining which, if any, employment-based immigration status is suitable for prospective employees. It is important to note that not everyone is eligible for work authorization in the United States, based on individual circumstances.
In such cases, if you decide to extend an offer of employment, the offer should be made contingent upon the applicant obtaining the appropriate work authorization and being able to maintain that authorization for the entire employment period.
What if an Offer Must Be Withdrawn?
If an individual responds affirmatively to the initial question but is unable to verify their response after an offer of employment has been extended, and the offer was made contingent on having the appropriate work authorization, you may withdraw that offer.
If you wish to extend a job offer to an individual who is not currently authorized to work in the United States, it is highly recommended that you consult with immigration attorney early in the hiring process to avoid delays in obtaining work authorization. Each individual’s circumstances are unique and not everyone will be eligible for employment in the U.S., as determined by their individual immigration-related circumstances. Understanding these guidelines is crucial to conducting fair and compliant interviews with foreign nationals, ensuring a smooth hiring process for all parties involved.
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