Visa Sponsorship and Discrimination Based on Citizenship Status

September 23, 2010

By: Erin S. Torcello

As all employers know, the Immigration and Nationality Act (“INA”) makes it unlawful for an employer to employ an individual who is not authorized to work in the United States. However, the non-discrimination provisions of the INA prohibit an employer from discriminating against certain individuals based on national origin or citizenship status with respect to, among other things, hiring and termination. As a result, employers are often faced with a dilemma: how far can an employer go to obtain information regarding an applicant’s immigration status during the hiring process without violating the INA. This dilemma may appear to be particularly difficult when making an employment decision based on an individual’s need for visa sponsorship. But, as explained below, that problem can be solved relatively simply.

Only certain “protected individuals” are protected from citizenship status discrimination under the INA. The term “protected individuals” has been defined to include: United States citizens, United States nationals, temporary residents, recent lawful permanent residents, refugees and asylees. The Department of Justice Office of Special Counsel for Immigration Related Unfair Employment Practices (“OSC”), the entity responsible for enforcing the employment discrimination provisions of the INA, has specifically opined that an employer has no obligation to sponsor an individual’s visa application.

Further, the OSC has advised that temporary visa holders are not “protected individuals” under the statute, and therefore, not protected from citizenship status discrimination. This includes, but is not limited to, any non-immigrant visa holders such as H-1Bs, TNs or F-1 visas with Optional Practical Training (“OPT”) work authorization. Therefore, the OSC has stated that employment decisions based solely on an applicant’s need for visa sponsorship, either currently or in the future, would generally not be actionable under the INA.

Because temporary visa holders are not subject to INA’s citizenship status discrimination provisions, OSC has stated that an employer may ask about an applicant’s need for visa sponsorship during the hiring process and has approved the use of the following questions on employment applications or in employment interviews:

1. Are you legally authorized to work in the United States? ____ Yes ____ No

2. Will you now or in the future require sponsorship for employment visa status (e.g., H-1B, TN, etc.)? ____ Yes ____ No

Despite OSC’s approval of such questions, it is important to note that the New York State Division of Human Rights has not expressly indicated whether this type of question would be a lawful or unlawful interview question.

If an employer does decide to include a question regarding visa sponsorship on its employment application or to ask a corresponding question during the employment interview, it is advisable to develop an internal policy that describes the circumstances, if any, under which the employer will consider potential visa sponsorship for an individual applicant and/or employee. Further, if there are specific job titles or categories for which the Company does not intend to sponsor any individual, either now or in the future, this fact should also be made clear during the hiring process (for example, by including visa sponsorship guidelines in the advertising materials, and informing all applicants about visa sponsorship guidelines at the beginning of the interview process, etc.).