What Immigration-Related Questions Can Employers Ask During the Hiring Process?

Employers often ask me: “What pre-employment questions are permissible to ask to help me determine whether a prospective candidate requires immigration sponsorship?”

Employers are prohibited from denying protected individuals employment because of their real or perceived immigration or citizenship status.

Until recently, the following two questions were the only accepted questions for pre-hire screening:

  1. Are you authorized to work in the U.S.?; and
  2. 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.

In the TAL, the OSC supports the use of the following pre-employment questions:

  1. Will you now, or in the future, require sponsorship (i.e. H-1B visa, etc.) to legally work in the U.S.?
  2. If so, are you currently in a period of Optional Practical Training (OPT)?
  3. 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 and could be considered 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?

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, it is illegal to require applicants to be U.S. citizens or have a particular immigration status.

The best approach is to remain informed of the options and requirements and hire the best candidate for the position.