Unlawful US Hiring Questions about Visa Status and Citizenship: Are Your Policies in Compliance? A 2022 Primer with Tips on Avoiding Discriminatory Practices | Perspectives & Events | Mayer Brown (2023)

Recently, the US Department of Justice (DOJ) announced settlement agreements with 16 private employers to resolve allegations of hiring discrimination. The settlement agreements total nearly $1 million in civil penalties, but perhaps more significant is the reputational harm experienced by these distinguished companies, as well as the energy spent on settling, retooling, and retraining.

Background

DOJ began its investigation after a lawful permanent resident reported that a third-party job recruitment platform had advertised a job opportunity for US citizens only. The Immigration and Nationality Act prohibits certain types of employment discrimination based on citizenship status and national origin with respect to recruiting and hiring. The ensuing investigation by DOJ unearthed multiple allegedly discriminatory job announcements on the recruiter’s website and similar platforms run by colleges or universities.

In the settlements, the companies denied any liability, and some of the employers claimed the colleges operating the recruiting platform were responsible for the alleged discriminatory violations. In an opposing view, DOJ noted its stance that employers are liable if the job postings discriminate based on citizenship or immigration status.

In DOJ’s estimation, unlawful hiring discrimination based on citizenship or immigration status is a common problem in US higher education, denying employment to qualified college students and graduates. A spokesperson for DOJ stated as part of the settlement announcement that the government is “committed to enforcing the law to ensure that students and job applicants — including lawful permanent residents, U.S. nationals, asylees and refugees — are protected from unlawful discrimination.” Furthermore, the department will “hold employers accountable for using on-campus recruiting platforms in a discriminatory manner and work to provide relief for victims,” according to the statement.

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Expanding the Definition of “Discrimination”

Historically, the government has stated that individuals protected against citizenship status discrimination include US citizens and nationals, certain lawful permanent residents, asylees, and refugees. According to DOJ guidance, while nonimmigrant visa holders and recipients of Deferred Action for Childhood Arrivals (DACA) are protected from national origin discrimination, they are not considered to be among the classes protected from citizenship status (alienage) discrimination. Importantly, DOJ also emphasized that employers cannot use the “temporary nature” of an employee’s work authorization to discriminate or subject the individual to unfair documentary practices in the Form I-9 (Employment Eligibility Verification) process.

Discrimination based on citizenship status is expressly prohibited by the Immigration and Nationality Act's anti-discrimination provision, 8 U.S.C. § 1324b. The law bars 1) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee; 2) national origin discrimination in hiring, firing, or recruitment or referral for a fee; 3) unfair documentary practices during the Form I-9 and E-Verify processes; and 4) retaliation or intimidation. The core federal legal provisions have been supplemented by regulations and agency guidance as well as interpretation by federal courts and administrative bodies.

Generally, DOJ permits an employer to ask job applicants a specific set of questions to help the employer inquire about a candidate’s employment eligibility and sponsorship. Those questions are:

1. Are you legally authorized to work in the United States?
2. Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)?

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In recent years, some noncitizens have pushed to expand these concepts and definitions, alleging that companies are discriminating on the basis of alienage by refusing to recruit and hire individuals who have temporary employment authorization to work in the United States. The noncitizens point to legal prohibitions against discriminating on the basis of race or alienage in making and enforcing agreements, e.g., employment contracts, under 42 U.S.C. § 1981.

This stance raises questions as to whether employers are barred from selecting candidates for hire based on their legal immigration status. Employers must also navigate whether a candidate may need future sponsorship for work authorization (along with related issues such as costs for immigration fees and uncertainty about adjudication timelines and decisions). These issues directly impact the procedures an employer may use to screen applicants and underscore how important it is for employers to stay abreast of legal developments that may impact their organizations’ recruiting and hiring policies and procedures.

Best Practices for Employers

DOJ has made clear that its investigations continue into additional employers’ hiring activities. Further, unlike many DOJ investigations that mine copious volumes of records, these discrimination inquiries may initially just involve logging into hiring portals and identifying alleged discriminatory language.

Today’s climate is especially fraught with risk for employers. Therefore, we have identified these tips for employers to help avoid discriminatory recruitment practices:

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1. Review your company’s anti-discrimination policy to ensure it is clearly defined and in compliance with this rapidly evolving area of the law. Pay attention to state and local laws, as the laws in certain jurisdictions may impose requirements that go beyond those contained in federal law. Importantly, as part of this process, evaluate your company’s diversity and inclusion policy to ensure that it supports a wide variety of candidates with diverse backgrounds.

2. Designate a leadership group or legal counsel to be responsible for oversight, monitoring, and compliance. Ask your legal advisor to review your training materials, standard operating procedures, and any scripts used by your recruitment and hiring professionals.

3. Ensure that recruiters understand limitations on asking candidates about their immigration status and employment authorization (including type and duration). Prepare a set of Frequently Asked Questions that instructs your recruiters on how to respond to inquiries. This will encourage consistent and compliant practices and will demonstrate good faith in the event of any legal challenges.

4. Train recruiting and hiring teams — and document that instruction. Conduct mandatory bi-annual or annual web-based refresher courses. DOJ’s Immigrant and Employee Rights section also conducts regular webinars in which it trains participants in avoiding employment discrimination on the basis of national origin and citizenship status, as well as employee rights during the Form I-9 and E-Verify processes.

5. Review current job postings for unduly restrictive language and consider including anti-discrimination policies in job announcements. Mayer Brown conducted an informal review of various online job announcements at esteemed companies and found several postings that should be improved in view of DOJ’s announcement. On the basis of those ads, except when legally required, we would encourage employers to avoid such language as:

(Video) Night

  • “Must be a US citizen”
  • “Only native English speakers should apply”
  • “US citizens only”
  • “Requiring citizenship”
  • “Limited to US citizens or legal permanent residents”
  • “Only H-1Bs”
  • “Limited to H-1Bs and students (OPT/CPT)”
  • “US passport holders only”
  • “Green card required”
  • “US birth certificate required”

According to DOJ, an employer may state:

  • The date by which an applicant must be eligible to begin work
  • “Applicants must be currently authorized to work in the United States on a full-time basis”
  • “The employer will not sponsor applicants for work visas”

6. Review and vet a job fair provider’s policies/language before participating in the fair, e.g., at a university. Individuals with expertise in Form I-9 and anti-discrimination regulations should review the hiring questionnaires and any automated systems (including drop-down menus) used by the job fair provider.

7. Before hiring an employee, do not request to see employment eligibility verification documents or require a candidate to complete the Form I-9. After the job candidate has accepted the offer, the employer may begin that process.

Takeaways

As reflected in the DOJ settlements, the Biden administration continues to focus on initiatives and investigations to address alleged discriminatory policies and practices. No employer is immune from the government’s renewed scrutiny.

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When hiring a new worker, companies are required to verify the employee’s identity and authorization to work, not the employee’s immigration status. Further, employers must accept documentation that reasonably appears to be genuine and to relate to the individual and cannot reject documents because of a future expiration date.

US employers should plan accordingly and review their human resources policies and practices across worksite locations, business divisions, and recruitment partners. It is necessary to prioritize strategies around hiring, retaining, and developing key employees and to invest in improving internal investigations and crisis management.

FAQs

Is it illegal to ask for citizenship status in a job application? ›

Citizenship: Inquiries about an individual's citizenship or county of birth are prohibited and can be perceived as discrimination on the basis the individual's national origin. Applicants cannot be discriminated against based on their citizenship status, except in rare circumstances when required by federal contract.

Are employers allowed to ask about visa status? ›

The question must focus on the job applicant's ability to work legally in the United States. The question should not ask about the applicant's immigration status or citizenship. Therefore, an employer may ask: Are you authorized to work lawfully in the United States for [insert company name]?

Can employer discriminate based on visa status? ›

Citizenship Discrimination & Workplace Laws

The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an employer to discriminate with respect to hiring, firing, or recruitment or referral for a fee, based upon an individual's citizenship or immigration status.

How do I answer visa status questions? ›

How should I answer the visa question? You should answer the question in an honest, direct, clear, concise and confident manner. If you are nervous or unsure, the employer will pick up on these signals and may not be able to stay focused on your skills and qualifications. Avoid excessive detail.

Is it illegal to ask if you are a US citizen job interview? ›

When You Can Ask. The Immigration Reform and Control Act requires you to verify your employees' eligibility status, even those you know to be U.S. citizens. However, the same Act prohibits you from asking people to prove their citizenship or work status before offering them employment.

Can you reject a candidate based on visa status? ›

Can we refuse to consider a candidate who is not eligible to work in the United States and would require sponsorship for an H-1B visa? Yes. An employer is not required by law to sponsor for an H-1B visa a candidate who is not eligible to work in the United States.

How does an employer check visa status? ›

Check someone's visa details with VEVO. Only registered organisations that have a visa holder's permission can check visa details. The organisation must register for an ImmiAccount. You can then access VEVO through your ImmiAccount.

Does background check show visa status? ›

A credit report background check evaluates an individual's credit history, not his immigration status. Employers in the US are prohibited by immigration rules from hiring those who are not legally authorized to work.

What causes a work visa to be denied? ›

If your visa application is rejected by an embassy, consulate, or high commission, it is visa refusal. It may be due to incomplete information on filled data, expired passport, shortage of funds and so on.

What proof do I need for discrimination? ›

To make a claim for discrimination you must show that you suffered an adverse employment action, such as demotion, termination, or failure to hire, because you are a member of protected class, i.e. due to your age, sex, race, disability, religion, sexual orientation, familial status, and a few other classifications.

Can an employer refuse to sponsor a visa? ›

What is the Company Policy on Sponsorship? U.S. employers are not required to sponsor employees for immigration. You can freely specify “no sponsorship” in a job ad and refuse to consider people who are not already authorized to work in the US.

Is it hard to prove employment discrimination? ›

Proving employment discrimination can often be difficult because evidence of discrimination tends to be hard to come by. However, there are a few ways wronged employees can make their claims in court and get their case in front of a jury.

Have you ever been refused a US visa best answer? ›

As part of the ds-160 form filling, you should answer “NO” to the question “have you ever refused us a visa” as your H1B petition was denied and not a US H1B visa.

How do I answer US visa interview questions? ›

While answering the questions asked by the consular officer, the applicant needs to answer directly with confidence and also reassure his/her ties to the native country. The applicant needs to stress his/her intentions of coming back to the native country after the completion of the trip.

What will you do if your visa is rejected answer in interview? ›

Re-apply in the Same Country

You must identify and rectify the reasons which may have caused the rejection. If you had a visa interview, you can ask the visa officer the reason for rejection. In case you weren't required to appear for an interview then you will receive a document stating the reason for rejection.

What are some examples of unlawful questions? ›

It is illegal to ask a candidate questions about their:
  • Age or genetic information.
  • Birthplace, country of origin or citizenship.
  • Disability.
  • Gender, sex or sexual orientation.
  • Marital status, family, or pregnancy.
  • Race, color, or ethnicity.
  • Religion.
24 Oct 2022

Can a recruiter ask your work authorization status? ›

During your application process for jobs, hiring managers may ask "are you legally authorized to work in the United States?" This question is a federal requirement for all job candidates.

What are the other examples of legal and illegal job interview questions? ›

  • 10 Illegal and Legal Interview Questions:
  • Age Questions. Inappropriate to ask: ...
  • Disability Questions. Inappropriate to ask: ...
  • Criminal Record Questions. Inappropriate to ask: ...
  • Parental Status Questions. Inappropriate to ask: ...
  • Marital Status Questions. Inappropriate to ask: ...
  • Citizenship Questions. ...
  • National Origin Questions.

What the 3 most common reasons for rejecting candidates? ›

Interview Rejection Reasons and Job Rejection Reasons
  • One-Type-Fits-All Resume and Impersonal Application. ...
  • Under or Overqualified, Exaggerating Experience. ...
  • Social Media Behavior. ...
  • Inappropriate or Untidy Appearance. ...
  • Poor Body Language. ...
  • Lack of Good Communication Skills. ...
  • Vague Responses, Avoiding Questions.
8 Nov 2022

Is visa refusal the same as rejection? ›

Visa refusal refers to the act of denying your entry into to a particular country by rejecting your visa application. Visa rejection may happen when you fail to prove your eligibility to visit a particular country.

How can I avoid rejection of visa? ›

If any information mentioned on the application form does not match with your travel documents, your application will be rejected. This is a very common occurrence when people fill the form hastily. Ensure that your details mentioned on the application form is the same as that in the passport.

How long does visa background check take? ›

If you have a serious crime, you need to talk to an immigration lawyer before filing for that immigration benefit. Once you do and get fingerprinted, background checks usually take six to eight weeks, maybe 12 weeks.

Can you check someone's visa status? ›

To find out a person's immigration status, you can either use the E-Verify website or submit a FOIA request to the Department of Homeland Security (DHS).

How can I check someone's citizenship status? ›

You can request a search of USCIS' comprehensive index to all granted naturalizations since 1906 by submitting a USCIS Genealogy Index Search Request.

Does USCIS check social media 2022? ›

Additionally, they may also ask for other social media handles like Myspace, Pinterest, Reddit, Tumblr, Twitter, and TikTok accounts. When an applicant starts their immigration process, they need to provide the usernames of the social media accounts that they've been active in during the last five years.

Does USCIS know everything about you? ›

They don't always know what information the United States Citizenship and Immigration Services (USCIS) will look at or whether they should be concerned.

How far back does an immigration background check go? ›

In California, employment background checks go back for the prior seven years.

How long does the US embassy keep a record of visa denials? ›

Paper DS-156 records are maintained for eleven years from the date of last action. Older paper records are not available.

How do visa officers do background check? ›

Most of the work of processing a visa is done before the interview even starts: we verify the applicant's identity, enter their biographic data into our system, take fingerprints, analyze biometric data, conduct security checks, screen required documents, and more.

Which country rejected visa most? ›

Applicantion Refusals
No.Schengen consulateRefusal Rate
1RUSSIAN FEDERATION1.55%
2CHINA3.73%
3INDIA9.34%
4TURKEY8.45%
67 more rows
14 Feb 2020

What are the 7 grounds of discrimination? ›

Grounds of discrimination
  • race.
  • national or ethnic origin.
  • colour.
  • religion.
  • age.
  • sex.
  • sexual orientation.
  • marital status.

What are 5 grounds of discrimination? ›

Grounds for Discrimination
  • Race.
  • National or Ethnic Origin.
  • Colour.
  • Religion.
  • Age.
  • Sex.
17 Nov 2021

What are the 13 grounds of discrimination? ›

The grounds are: citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, receipt of public assistance (in housing) and record of offences (in employment).

What disqualifies you from sponsoring an immigrant? ›

If you've been convicted of one of these types of offenses, you'll be disqualified from sponsoring someone for a green card: Any sex offense against a minor. The production, possession or distribution of pornography involving children or minors. Kidnapping a child.

Can I get in trouble for sponsoring an immigrant? ›

Risks of sponsoring an immigrant after signing an affidavit of support appear from the contractual relationship between the sponsor and the government. This contract will be enforceable in the court of law and the government may sue the sponsor for failing to provide support to the immigrant.

What are the main reasons to sponsor or not to sponsor a certain event? ›

The 5 true reasons why brands want to sponsor events
  • Increase sales of a product or service. For some sponsors pure image gain or brand awareness is simply not enough. ...
  • Increase brand awareness. ...
  • Repositioning the brand. ...
  • Block competition. ...
  • Social responsibility.
10 Oct 2019

Are employers afraid of the EEOC? ›

Often employers will feel confused, angry, or afraid upon receiving the EEOC complaint. While it seems like there is no upside to being investigated by a federal agency, the first stage of the process is simply an investigation.

How do you win an employment discrimination case? ›

In order to win your employment discrimination case, you need to prove that you've been treated differently from other employees. Inequal treatment could be in the form of adverse employment action, for example, termination, demotion, reduction of a salary or transfer to an unfavorable location.

What are the chances of winning a discrimination case? ›

95% of EEOC district court cases are successful, though this number can be misleading. The reality is that only 17.4% of the EEOC's closed workplace discrimination charges result in a resolution for a client.

How can I show strong ties to home country for US visa? ›

How To Demonstrate “Ties To Home Country”
  1. Recent pay stubs from employment in your home country.
  2. Bank statements showing your financial stability.
  3. I-94 travel document with travel history to and from your home country.
28 Jun 2022

Does US visa rejection affect future visa application? ›

If your visa application is rejected, it can affect your future travel plans. First and foremost, you will not be able to enter the country you were hoping to visit. This means you will have to make other travel arrangements, which can be costly and time-consuming.

Do visa officers check bank statements? ›

Get your bank statements attested

Select countries require applicants to submit their bank statements, duly attested. While it is common to submit bank statements, and most travellers are aware of this step, not having these bank statements attested is a common error.

How can I impress a US visa officer? ›

When your turn for the interview comes, enter the room with a smile, greet the officer with a warm hello or hi. S/he may ask you 'how are you doing'. Reply politely and thank them for asking. If your visa is granted, thank them politely and leave.

How can I impress in visa interview? ›

The tips below are intended to help you prepare for your visa interview at the U.S. Embassy or U.S. Consulate in your home country.
  1. Ties to Home Country. ...
  2. English. ...
  3. Speak for Yourself. ...
  4. Know the Program and How it Fits Your Career Plans. ...
  5. Be Concise. ...
  6. Supplemental Documentation. ...
  7. Not All Countries Are Equal. ...
  8. Employment.

Do and don'ts in US visa interview? ›

While it is good to make scripts and refer some most frequently asked questions and answers, avoid mugging up on the lines. Spontaneity is an important aspect of a visa interview. 'Torn documents a strict no n-no' – Make sure the visa related documents are presentable. Don't use torn or crushed documents.

Does US embassy give reason for visa refusal? ›

If a consular officer finds you are not eligible to receive a visa under U.S. law, your visa application will be denied (refused), and you will be provided a reason for the denial.

Can I get US visa after 3 rejection? ›

Do refused applicants have to wait three to six months before reapplying? There is no time restriction on resubmitting an application after a refusal. If additional information or supporting documentation is available which may further demonstrate applicant's qualification for a visa, an application may be resubmitted.

Is it hard to get US visa after rejection? ›

A visa denial under 214(b) is not a permanent ineligibility. The consular officer will reconsider a case if an applicant can show further convincing evidence of ties outside the United States. Your friend, relative or student should contact the embassy or consulate to find out about reapplication procedures.

Is it legal to require US citizenship for a job? ›

Limit jobs to U.S. citizens unless U.S. citizenship is required by law or government contract. Demand a specific document when reverifying that you are authorized to work.

What does it mean when a job asks for citizenship? ›

The Immigration Reform and Control Act requires all employees to provide proof to employers that they can legally work in the U.S. Employers are required to verify the eligibility status of all employees, even those they know are U.S. citizens.

Can you ask a person's race on a job application? ›

In general, it is assumed that pre-employment requests for information will form the basis for hiring decisions. Therefore, employers should not request information that discloses or tends to disclose an applicant's race unless it has a legitimate business need for such information.

How does USCIS check unauthorized employment? ›

You may be wondering how will the USCIS know that you're working without authorization. In many cases, they will know through your tax returns, resume, or visa support letter. In addition, the government is increasingly searching the internet for evidence of unauthorized employment.

What disqualifies you from becoming a U.S. citizen? ›

You have been convicted of or admitted to a crime involving moral turpitude, such as fraud. You spent 180 days or more in jail or prison for any crime. You committed any crime related to illegal drugs other than a single offense involving 30 grams or less of marijuana.

Do all Federal jobs require citizenship? ›

Do I have to be a US citizen to apply? Under Executive Order 11935, only United States citizens and nationals may be appointed to competitive service Federal jobs. In rare cases, agencies may hire certain non-citizens when there are no qualified U.S. citizens available, unless the appointment is prohibited by statute.

Do they do background check for U.S. citizenship? ›

Part of applying for U.S. citizenship involves going through a criminal background check. USCIS will need to get the fingerprints of a foreign national and send them to the FBI and other government agencies to check for records matching the fingerprints.

Does USCIS check employment history for citizenship? ›

The USCIS will check an applicant's work history.

You will need to list the employers' names, addresses, your position, and start and end dates. During the USCIS background check, the FBI will work to ensure that all of your information is correct.

Can recruiter ask citizenship? ›

Most employers should not ask whether or not a job applicant is a United States citizen before making an offer of employment.

What are unfair hiring practices? ›

What are unfair hiring practices? Unfair hiring practices are aspects of the hiring process that are unfair to certain groups or individuals. They are often the result of hidden biases that are common in recruitment processes, such as affinity bias or confirmation bias.

What you Cannot ask in an interview? ›

Birthplace, country of origin or citizenship. Disability. Gender, sex or sexual orientation. Marital status, family, or pregnancy.

For what reasons may employers legally not hire applicants? ›

Recruitment. It is also illegal for an employer to recruit new employees in a way that discriminates against them because of their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

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