This week we are pleased to have a guest post by Robinson+Cole Immigration Group lawyer Jennifer L. Shanley.
Recruiting the best talent is essential for many manufacturers’ ongoing success. Many times, the best talent is an individual who was born in another country and who needs sponsorship to work in the United States.
But how do manufacturers know that an individual would need sponsorship in order to work? The answer is simple: by asking the right permissible questions during the interview process, without opening the company to a claim of discrimination.
The Immigration Reform and Control Act of 1986 (IRCA) protects foreign nationals from discrimination based on citizenship and based on national origin. This doesn’t mean that employers are required to hire and sponsor a foreign national for work authorization. It remains a company choice whether to engage in immigration sponsorship and the employer has the right to determine what employment positions, if any, will be sponsored. If an employer will not sponsor an individual for work authorization, determining if a candidate requires sponsorship before the offer-stage is critical. Other employment laws may also contain similar protections for applicants.
Of course, many manufacturers regularly sponsor foreign nationals for work authorization, and yet it is still important for them to know, as early as possible, whether sponsorship will be required for a particular candidate.
To confirm if an employer needs to actively participate in gaining work authorization for the candidate, without raising a potential discrimination claim, the following two questions should be asked to every candidate:
- Are you currently authorized to work in the U.S. on a full-time basis?
- Will you now or in the future require sponsorship for employment status?
If employers adopt these two questions for every interview, it may limit the risk of discrimination based on national origin and citizenship status. Otherwise, asking poorly phrased questions such as “What is your visa status?” or “Are you a U.S. citizen?” may lead rejected candidates to perceive that they were discriminated against based on national origin or citizenship.