Employers often ask me: “What pre-employment questions are permissible to ask to help me determine whether a prospective candidate requires immigration sponsorship?”
Employers cannot legally deny protected individuals employment because of their real or perceived immigration or citizenship status. Yet they may want to ask immigration-related questions for practical purposes.
Permissible Immigration-Related Questions
Until recently, employers were only allowed to use the following two immigration-related questions for pre-hire screening:
- Are you authorized to work in the U.S.?
- Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)?
The U.S. Department of Justice’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) has issued a technical assistance letter (TAL) with additional guidance.
Breakdown of Technical Assistance Letter from the OSC
In the TAL, the OSC supports the use of the following pre-employment questions:
- Will you now, or in the future, require sponsorship (i.e. H-1B visa, etc.) to legally work in the U.S.?
- If so, are you currently in a period of Optional Practical Training (OPT)?
- If you are currently in OPT, are you eligible for a 24-month OPT extension based upon a degree from a qualifying U.S. institution in Science, Technology, Engineering or Mathematics?
The OSC cautioned employers against asking job applicants detailed questions about their immigration or citizenship status, because it may deter protected individuals from continuing with the hiring process. This could qualify as a violation.
The OSC has also stated that the following questions are impermissible:
- If hired, can you provide proof that you are legally able to work in the U.S. for at least 12 months?
- Are you prevented from lawfully becoming employed in this country because of your visa or immigration status?
- Can you please specify your citizenship or immigration status?
The Bottom Line of Interviewing International Candidates
As a general rule, employers should treat all applicants the same way. A uniform and consistent process protects employers from potential national origin and citizen status discrimination claims.
Employers should also avoid “citizen-only” or “permanent resident/green card-only” hiring policies unless required by law, regulation or government contract. In general, the law compels employers to hire without regard to an applicant’s U.S. citizenship or particular immigration status.
The best approach: remain informed of the options and requirements, and hire the best candidate for the position.
Originally published June 7, 2017. Updated January 24, 2023.