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Are employers allowed to ask me if I need sponsorship?

By January 3, 2024Uncategorized
A corporate man holding a question mark

U.S. law creates certain protections against discrimination for job applicants. For example, a job applicant cannot be discriminated against because of the country they are from, their accent, or how they look. Employers are also prohibited from discriminating against applicants based on other things, including their “citizenship status” – such as whether they are a U.S. citizen or permanent resident.

In this blog post, we take a look at how these laws apply to job applicants who have a nonimmigrant visa – such as an F-1 student on optional practical training (OPT), someone seeking employment for a TN visa, or the dependent spouse of an E-2 or L-1 visa, for example.

What is citizenship status discrimination, and how does U.S. law protect job applicants against it?

Citizenship status discrimination can take many different forms. Typically, it occurs when an employer treats a job applicant or employee unfavorably based on their lawful status in the United States. This usually occurs in the hiring, recruitment, or firing phase.

Citizenship status discrimination is explicitly prohibited by law – specifically, 8 U.S. Code section 1324b (“Section 1324b”).

How did Section 1324b come to be?

As is true of many laws, Section 1324b is the result of compromise. President Ronald Reagan signed the law as part of the Immigration Reform and Control Act of 1986, also called “IRCA.”

In signing IRCA, President Reagan made it possible for an estimated three million people to receive legal status in the United States and avoid deportation. On the other hand, IRCA introduced strict requirements on employers to ensure that only individuals who were authorized to work could do so. This system would later become our current I-9 employment verification system, which we wrote about in an earlier post here.

Who does Section 1324b actually protect?

After hearing that U.S. law prohibits discrimination based on citizenship status, one might think that this means that an employer should not be allowed to reject a job applicant because their work permit will be expiring soon, to ask a job applicant whether they require sponsorship, or possibly even to reject a job applicant who lacks legal status in the United States.

In fact, the law does not necessarily prohibit any of these actions. To see why, it is important to take a closer look at Section 1324b.

Section 1324b only protects “protected individuals” from employment discrimination. “Protected individuals” include U.S. citizens, lawful permanent residents, refugees, or those granted asylum.

Importantly, those who are in the United States on a nonimmigrant visa – a TN, H-1B, E-2, L-1, etc. – are not considered “protected individuals,” even if they have work authorization.

Perhaps not surprisingly, those who do not have work authorization are also excluded. Not only can an employer reject an applicant who does not have work authorization – they must reject such an applicant and would be in violation of the law if they did not do so. After all, this is one of the key reasons behind the I-9 employment verification process: employees and job applicants receive protections, but employers also must ensure that the people they hire or employ are authorized to work.

Section 1324b also allows employers to prefer U.S. citizens over another applicant who is equally qualified, even if that other applicant is a protected individual (such as a permanent resident).

What does this mean in practice?

To see what all this looks like in practice, it is helpful to take a look at a 2014 technical assistance letter about the application of Section 1324b (found here) that was sent by the U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices to an inquiring lawyer.

The lawyer who sent the letter asked, in summary, whether an employer can refuse an offer of employment to someone simply because their work permit will expire soon. If so, can it tell the applicant that this is the reason?

The government’s Acting Deputy Special Counsel at the time, Alberto Ruisanchez, responded by saying that F-1 students (among other nonimmigrants) “are not protected from citizenship status discrimination.” As a result, it is usually fine for an employer to ask job applicants whether they would require sponsorship. It is also generally acceptable for the employer to tell the job applicant that they were not hired because the employer is not willing to sponsor them.

However, employers should exercise caution and implement consistent practices.

The letter does point to several important limitations. In the letter, the Acting Deputy Special Counsel notes that employers should be careful not to violate the anti-discrimination protections by requesting a document and then rejecting it due to its future expiration date. The letter also states that employers should be careful not to commit discrimination based on national origin (in other words, discrimination based on which country they are from, their accent, or their appearance), which all job applicants with work authorization are protected against (including those with nonimmigrant visas).

As we explained in an earlier post, employers should be careful to implement employment practices that are consistent for all job applicants. We discuss this in our earlier blog post about the I-9 employment verification process, found here.

Also, employers should be careful not to make assumptions about applicants, even if those assumptions are based on the person’s current employment authorization status. For example, a person who is currently working in a nonimmigrant status might be in the process of extending their status or changing to lawful permanent resident status.

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