What Immigration-Related Questions Can You Ask a Job Candidate?

You probably do not want to spend time going through the interviewing and hiring process with a candidate who cannot legally work in the U.S.

Those who do not know much about immigration law may think there is a clear divide between those who can work in the U.S. and those who cannot without work authorization. In reality, there is a significant gray area comprised of candidates who could work here if they had employment sponsorship (also known as a work visa), candidates with temporary but otherwise unrestricted employment authorization (typically a h-1b visa), and candidates who may only work for a specific type of employer.

Knowing how to navigate the waters with candidates who are not U.S. citizens may help you tap into a market of thousands of potential employees during the job application process. On the other hand, mishandling these situations may expose you to government investigations and fines.

The Question of Sponsorship

It's best not to assume anything from how a job candidate looks or speaks. A candidate with an accent does not automatically mean they will need sponsorship to work for you. On the other hand, a candidate who speaks English without an accent may not be authorized to work in the United States.

Since looks can be deceiving, during the interview process it is a good practice to ask all job candidates if:

• They are currently eligible to work in the United States
• They need, or will ever need, sponsorship to work in the U.S.

What Does the Law Say?

The Immigration and Nationality Act's protections against discrimination based on national origin or citizenship status only apply to:

• U.S. citizens
• Lawful permanent residents (candidates who have a "green card")
• Special agriculture workers who have the status of lawful temporary residents
• Refugees and asylees

Those candidates do not need employment sponsorship.

If a candidate says they do not need sponsorship, questions should end there, at least until you extend an employment offer. Microsoft learned that lesson the hard way. The company agreed to pay a civil penalty of $17,352 to resolve claims that it violated the Immigration and Nationality Act by asking candidates who were lawful permanent residents, refugees, and asylees to go through an assessment of their need for visa sponsorship as part of the hiring process.

How Can You Make Sure Candidates Tell the Truth?

If you want to protect yourself against fines for hiring employees without the proper employment authorization, you should complete a Form I-9 for each employee you hire, regardless of citizenship or immigration status. This form, which must be completed no later than the first day of employment, will have the employee answer questions about their citizenship status and work eligibility in the U.S. It also requires the employer to verify the answers with passports, permanent resident cards, or employment authorization cards.

As long as every candidate follows the same employment practices, you should be able to avoid any discrimination charges from the U.S. Department of Justice.

However, you may not have the candidate complete Form I-9 before they accept your job offer. Thus, if you suspect the candidate is being untruthful about their ability to work or visa status, you could find yourself in a situation where the only way to find out the truth is to extend them a job offer.

Related Resources:

• Lying on a Resume or Job Application (FindLaw's Learn About the Law)
• Illegal Job Interview Questions (FindLaw's Learn About the Law)
• Legal Rights During the Hiring Process (FindLaw’s Learn About the Law)
• The Hiring Process (FindLaw’s Learn About the Law)