As discussed on our
Labor & Employment Law Perspectives Blog on March 12, 2012,
it is a best practice to ask job applicants about their ability to
work legally in the United States. While asking "are you
authorized to work lawfully in the United States" is
necessary, that question may not generate sufficient information.
Some employers may not wish to commence ("sponsor") an
employment-based immigration case in order to fill the open
position. Such employers may be frustrated when they learn only
after hiring a candidate that he requires an H-1B case or other
employment-based immigration case in order to work
lawfully.Employers may avoid this surprise by asking a follow up
Are you authorized to work lawfully in the United States for
[insert company name]? _____ Yes _____ No
Will you now or in the future require [insert company name] to
commence ("sponsor") an immigration case in order to
employ you (for example, H-1B or other employment-based immigration
case)? This is sometimes called "sponsorship" for an
employment-based visa status.
An employer has no legal obligation to commence an immigration
case. Therefore, if the job applicant answers "yes" to
the second question, the employer need not consider the applicant
further. The employer may lawfully reject the job applicant
because, if hired, that individual will ask the employer to take
steps before the federal government to obtain authorization to
employ him (an employment-based immigration case). This situation
differs from one in which a job applicant has temporary work
authorization that is independent of the employer and the applicant
does not ask the employer to take on the legal obligation of an
immigration case in order to employ him. The employer should not
reject the job applicant simply because he has temporary work
authorization. As stated on the Form
I-9 instructions, "refusal to hire an individual because
the documents presented have a future expiration date may . . .
constitute illegal discrimination."
It is important to understand the reason behind a lawful
rejection of the job applicant. Otherwise, the employer may violate
the antidiscrimination provisions of immigration and other federal
Finally, if an employer does not wish to commence any
employment-based immigration cases, the employer may make that
announcement in its recruitment. The OSC has confirmed that an
"employer may state in its job postings that it will not
sponsor applicants for work visas." OSC
Technical Assistance Letter (Sept. 27, 2010), at pg. 2.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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With no relief in sight for an increase in the limited number of H-1B spots that will be available in Fiscal Year 2016 nor likely implementation of other possible measures to improve the immigration system by April 1, 2015, are you ready for H-1B Cap Season?
Employers of foreign nationals should note that registration for the Fiscal Year 2015 Diversity Visa ("DV") Lottery opened yesterday, October 1, 2013, at noon (EDT) and will remain open until noon (EDT) on Saturday, November 2, 2013.