This article has been published in partnership with ThinkHR.
Question: We would like to include the following statement in our job postings: “We are interested in every qualified candidate who is eligible to work in the United States. However, we are not able to sponsor visas.” Would this be considered a discriminatory practice?
Answer: The anti-discrimination provisions of the Immigration and Nationality Act (INA) do not bar employers from limiting employment to individuals with the legal right to work in the United States and stating in recruitment materials that immigration or work visa sponsorship will not be provided as long as the no-sponsorship policy is applied in a nondiscriminatory fashion regardless of race, gender, ethnic origin, or any other classification protected by law.
This legal right to work status applies to U.S. citizens, U.S. nationals, recent lawful permanent residents, refugees and asylees. Other types of nonimmigrants may lawfully be excluded from the recruitment process if the exclusion practices do not involve discrimination based on protected class status or other prohibited conduct, such as document abuse in the I-9 verification process.
In the event that an applicant overlooks the no-sponsorship statement in the recruitment materials, the Department of Justice has indicated employers may lawfully ask:
1. Are you legally authorized to work in the United States on a full-time basis?
2. Will you now or in the future require sponsorship for employment visa status?
Consequently, employers may lawfully reject applicants for advertised positions who are not U.S. citizens, U.S. nationals, recent lawful permanent residents, asylees, or refugees. If an applicant’s immigration status is unclear during the recruitment and selection process, consult with legal counsel.