The Immigration Reform and Control Act of 1986 (IRCA) requires that employers only hire people who are authorized to work in the United States. This typically includes U.S. citizens, permanent residents, and U.S. nationals. In fact, employers must verify an employee’s work authorization status within three days of employment. Thus, it is perfectly legitimate for an employer to require individuals to be authorized to work in the United States as a condition of employment. Moreover, an employer does not violate the law by refusing to sponsor an international student for an H-1B non-immigrant specialty occupation temporary work visa or for a permanent employment immigrant visa.
Interviewing International Students
There are very few exceptions to the prohibition of citizenship discrimination. A U.S. citizenship requirement for employment is proper only if:
- It is required to comply with a law, regulation, or an executive order,
- It is required by a federal, state, or local government contract, or
- The U.S. Attorney General determines that the citizenship requirement is essential for the employer to do business with an agency or a department of the federal, state, or local government.
Additionally, the citizenship requirement must be related to a specific job that has been identified in the contract, by law, or by the U.S. Attorney General. For example, an employer that is a U.S. Department of Defense (DOD) contractor cannot require U.S. citizenship for all of its jobs relating to a DOD contract if the contract identifies only certain jobs as requiring U.S. citizenship.
Title VII of the Civil Rights Act prohibits discrimination based upon national origin, as well as other protected classifications. National origin discrimination occurs when an individual is denied an employment opportunity or is treated differently because of his or her birthplace, ancestry, cultural background, or heritage.
What is confusing to employers and students is that IRCA permits employers to hire any international who has the appropriate work authorization, but it does not protect internationals from employment discrimination unless they fit within one of the protected classifications. IRCA and Title VII also permit employers to refuse to hire an individual based upon the person’s limited work authorization, or the person's difficulty in obtaining the work authorization.
While it is illegal to make an interview or hiring decision based upon an individual’s national origin, citizenship, age, religion, gender, race, or disability, employers do not violate the IRCA or Title VII by excluding students with F-1 or J-1 visas from interview schedules or hiring. During an interview, an employer may:
- Ask if the student is on an F-1 or J-1 visa.
- Ask which type of work authorization that the student possesses.
- Advise students that as a condition of employment, the student will have to complete an I-9 form indicating the student’s work eligibility.
- Inform the student that the employer does not sponsor individuals for H-1B visas.
An employer may not ask the student’s country of origin, native language, or treat students differently based upon their name, color, or accent. The employer should ask all students the same questions, not only those who may "look" or "sound" international. Selectively questioning and advising students of work authorization requirements could raise the question of whether the recruiter is treating students unfairly based upon national origin.
Unless well versed in the fine points of immigration law, many employers and students don’t know the differences between those groups. Moreover, there are far more internationals attending universities and colleges who are on F-1 and J-1 visas than those who are permanent residents, refugees, and asylees.
Therein lies the problem. International students, aware of their right to be employed for a twelve, eighteen-month, or three year practical training period, want to be included in interview schedules. With sponsorship from an employer, any of these international students may obtain an H-1B (specialty occupation) visa to work for up to six years in the United States.
So what is the answer to this quandary? Employers should clearly define their work requirements: will the employer hire individuals that possess practical training work authorization or only those with permanent work authorization? If U.S. citizenship is a requirement of the job, the employer should specify the reason for this on the job position notice. Sponsorships or non-sponsorships for H-1B visas should also be stated clearly on the job notice.
Students should understand the work authorization requirements of U.S. immigration law. Students should stress their skills and advanced degrees. Students should also seek out those employers that have H-1B sponsorship programs or international operations. Additionally, students should be aware of proper and improper interview inquiries.