Permissible Questions to Ask about Job Applicant’s Immigration Status

July 7, 2016 | Appeals | Commercial Litigation | Corporate

The Office of Special Counsel for Immigration-related Unfair Employment Practices (“OSC”) at the U.S. Department of Justice recently issued Technical Assistance Letter (“TAL”) regarding employer compliance with the anti-discrimination provision of the Immigration and Nationality Act (“INA”).  The OSC concluded that an employer does not violate anti-discrimination laws by 1) refusing to hire all applicants who require visa sponsorship without violating anti-discrimination laws or 2) preferring certain classes of nonimmigrant visa holders, such as OPT students eligible for a 24-month extension, over other classes of nonimmigrant visa holders.

The OSC was asked whether the following questions were permissible during a job interview:

  • Will you require sponsorship (e.g. H-1B visa status) to work legally in the United States?
  • Do you currently hold Optional Practical Training (“OPT”)?
  • If you hold OPT, are you eligible for a 24-month extension of your OPT based upon a degree from a qualifying U.S. institution in Science, Technology, Engineering, or Mathematics (“STEM”)?

The OSC explained that the INA prohibits, among other practices, discrimination in hiring, firing or recruiting based on national origin, citizenship or immigration status.  According to the OSC, the prohibition against citizenship discrimination protects U.S. citizens, as well as U.S. nationals, refugees, asylees and recent lawful permanent residents.

Applying these principles, the OSC advised that an employer can refuse to hire all applicants who require visa sponsorship without violating anti-discrimination laws. An employer can also prefer certain classes of nonimmigrant visa holders, such as STEM OPT students, over other classes of nonimmigrant visa holders without violating anti-discrimination laws.

The OSC nevertheless opined that questions about an applicant’s immigration or citizenship status can deter protected individuals, such as refugees, from applying.  Accordingly, the OSC cautioned against asking “detailed questions” pertaining to an applicant’s immigration status.  The OSC further cautioned that all individuals authorized to work are protected against national origin discrimination.

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