Is this question even legal to ask?

[xillini 71]

Hi, I am a LPR and have a question upon my job applications. 

 

As far as I am concerned, I am aware that employers may not ask immigration status by regulations from Equal Employment Opportunity Commission. 

The ration would be it may discriminate job applicants based on immigration status. So I am not sure if the question in the attached file, directly asking if I am USC/LPR, or some other status are gonna be met under the regulations.  

 

From my F1 and OPT stage, I had encountered many employers asking if "are you authorized to work in US?" and it recently changes to "Are you now or in the future authorized to work in US without sponsorship?" At least, this question does not directly ask if you are USC, LPR, or other, but the attached question was quite direct if one understands English. 

 

Now my question is "is this question lawful to ask to job applicants?" Or Equal Employment Opportunity Commissions decides not to enforce their regulations anymore when political climate changes when President Trump announces "Hire Americans, Buy Americans" ? 

 

Just FYI is this employer is Fortune 500 company (in Agricultural sectors). In other words, the leader company in Ag Industry, which I am sure they do have strong corporate attorney teams. 

[Cyberfx1024 7,978]

2 minutes ago, xillini said:

Hi, I am a LPR and have a question upon my job applications. 

 

As far as I am concerned, I am aware that employers may not ask immigration status by regulations from Equal Employment Opportunity Commission. 

The ration would be it may discriminate job applicants based on immigration status. So I am not sure if the question in the attached file, directly asking if I am USC/LPR, or some other status are gonna be met under the regulations.  

 

From my F1 and OPT stage, I had encountered many employers asking if "are you authorized to work in US?" and it recently changes to "Are you now or in the future authorized to work in US without sponsorship?" At least, this question does not directly ask if you are USC, LPR, or other, but the attached question was quite direct if one understands English. 

 

Now my question is "is this question lawful to ask to job applicants?" Or Equal Employment Opportunity Commissions decides not to enforce their regulations anymore when political climate changes when President Trump announces "Hire Americans, Buy Americans" ? 

 

Just FYI is this employer is Fortune 500 company (in Agricultural sectors). In other words, the leader company in Ag Industry, which I am sure they do have strong corporate attorney teams. 

I have also seen this alot lately as well. I take it that I do think this is legal because the company wants to know if there will be a problem in the future. 

[milimelo 4,193]

I don't see an issue here. There's no discrimination. 

A company (in this case Caterpillar) can choose not to sponsor any worker petitions now or in the future - totally legal. 

[xillini 71]

4 minutes ago, cyberfx1024 said:

I have also seen this alot lately as well. I take it that I do think this is legal because the company wants to know if there will be a problem in the future. 

I see. 

It may be hard to go against regulations and laws when the corporate simply reply it is because they don't see the worth of sponsoring the potential job candidates, but it is not to discriminate the the candidates. I see

[Crazy Cat 39,217]

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 question:

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.

_____ Yes _____ No

Not only is it legal to ask those questions, it is BEST PRACTICE to ask....

[Cyberfx1024 7,978]

3 minutes ago, xillini said:

I see. 

It may be hard to go against regulations and laws when the corporate simply reply it is because they don't see the worth of sponsoring the potential job candidates, but it is not to discriminate the the candidates. I see

Well because there is a big problem right now politically for companies hiring H1B workers and so companies are trying to head it off in the beginning. I have seen that alot lately with IT workers and announcements  clearly stating "No H1B Sponsorship allowed". 

[Suss&Camm 2,213]

Their statement that (paraphrasing) "if you have an EAD your answer would be yes" is not entirely true... K1's do not require sponsorship - and indeed it is unlawful to discriminate based on a person having work-authorization, as to what type of work-authorization they have (except for example if it's for high security clearances in which case you have to be a USC). That said, they are allowed to choose of course if they wish to sponsor someone's visa and/or EAD - so if the employment doesn't grant sponsorship, it would not be discrimination, it would be a result of the nature of position being posted.

[Merrytooth 5,748]

https://www.lexology.com/library/detail.aspx?g=6e4da38a-9c44-482c-9b9c-23cfcbf92ba0

 

Quote

What Can We Legally Ask Foreign Workers During the Pre-Employment Process?

 

Employers, both in New Mexico and throughout the United States, often have questions regarding what they can ask an applicant in connection with citizenship status and whether they can make hiring decisions based on the applicant’s status. Fortunately, the U.S. Equal Employment Opportunity Commission (“EEOC”) and U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) have provided employers with some guidelines regarding these matters.

In considering all jobs applicants, employers must be careful in striking a balance between verifying a worker’s employment eligibility while also not engaging in discrimination against such individuals. On the one hand, the federal Immigration Reform and Control Act of 1986 (“IRCA”) requires employers to verify that all workers have eligibility to work in the United States (i.e., complete the Form I-9 verification process). On the other hand, the federal Immigration and Nationality Act (“INA”), as amended by IRCA, prohibits employers from engaging in discrimination with respect to hiring based on an individual’s real or perceived citizenship or immigration status.

How should employers strike this balance? To generally avoid discrimination claims, the EEOC recommends that the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; accordingly, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations.

 

As noted above, however, one of the essential inquiries in whether an applicant is qualified for a position must be whether an applicant is authorized to work in the United States. As such, the OSC, which enforces the anti-discrimination provision of the INA,1 has advised that employers who ask the following questions of job applicants are unlikely to face citizenship and immigration status discrimination claims:

• Are you legally authorized to work in the United States for our Company?
• Do you now, or will you in the future, require sponsorship for employment visa status (e.g., H-1B visa status, etc.) to work legally for our Company in the United States?

Such questions are generally permissible as they are designed to provide the employer information as to whether the applicant is permitted to work in the U.S., as employers are required by law to do, and also to inform the employer of whether it would be required to sponsor the applicant, which it has no legal requirement to do.

 

If employers elect to ask the above questions, they must ask both questions to all job applicants, even if the applicant responds “yes” as to the first question, so as to treat all applicants fairly and in a nondiscriminatory manner. Moreover, it is important that employers ask the second question because the decision not to hire individuals based solely on their need for visa sponsorship, either now or in the future, would generally not be actionable under the INA’s antidiscrimination provision.

 

During the hiring process, employers should not ask a job applicant to prove his or her citizenship status (i.e., by requiring an applicant to present documents); such should wait until after the employer has hired the applicant. Similarly, it is not recommended that employers ask job applicants if they are authorized to work in the United States on an “unrestricted basis” because employers should not ask applicants to specify their citizenship status at the application stage, and such a question may be misleading for individuals who have authorization to work, but such authorization will need to be periodically renewed by the individual (such as refugees).

 

What about applicants who have temporary authorization to work in the United States? Indeed, there are various individuals who may be legally present and authorized to work in the United States—including H-1B visa holders (person in a specialty occupation), O-1 visa holders, F-1 OPT visa holders (students engaging in Optional Practical Training), among others—but such authorization is temporary in nature. The INA’s anti-discrimination provision only prohibits discrimination against “protected individuals,” which are defined by the act to include (1) U.S. citizens and nationals; (2) recent lawful permanent residents (sometimes called “green card” holders); (3) refugees; and (4) asylees. This protection does not extend, however, to temporary visa holders. Thus, an employer who decides not to hire a temporary visa holder would likely not subject an employer to claims of unlawful citizenship and/or immigration status discrimination so long as that employment decision is made exclusively on the basis of an individual’s status as a temporary visa holder.

 

[abum 324]

What if part of the recruitment/job application, the following question is asked "Do you have US experience? How many years?" (as in have you worked in the USA before), which will surely exclude newly GC holder/newcomers. (for example, if you have retail experience - would it matter if you never worked in the USA before but have lots of experience in retail in a number of other countries?)

 

Is that something that job applicants are required to answer? 

"The INA’s anti-discrimination provision only prohibits discrimination against “protected individuals,” which are defined by the act to include (1) U.S. citizens and nationals; (2) recent lawful permanent residents (sometimes called “green card” holders); (3) refugees; and (4) asylees. "

 

Edited September 26, 2017 by abumiqdad

[NigeriaorBust 4,087]

  My teenage grandchild would also have 0 years of US experience .  

[Merrytooth 5,748]

11 minutes ago, abumiqdad said:

What if part of the recruitment/job application, the following question is asked "Do you have US experience? How many years?" (as in have you worked in the USA before), which will surely exclude newly GC holder/newcomers. (for example, if you have retail experience - would it matter if you never worked in the USA before but have lots of experience in retail in a number of other countries?)

 

Is that something that job applicants are required to answer? 

I have never encountered these types of questions in pre-employment applications.

 

Most likely the question will be "how many years of experience do you have in your specialized/work field?" -> which does not limit to US work experience only.

 

And normally, you could upload your resume online where the employer could see if your work experience is US or Foreign based.

 

They will be too stupid to ask the obvious questions.

 

[abum 324]

Well that is the question that i have been ask A LOT. And i am starting to get annoyed of being asked that question. 

Maybe next time I will just say i have lots of relevant experience. And most of the time, that question was asked by recruiters (which happened to be someone with an indian accent - albeit sometimes they use typical caucasian names when they emailed me).

Even after they looked at my resume, they called me and asked "I see all your experience is not in the USA, any chance you have had US clients?" or something along that line. I bet the company that hired the recruiters specifically mentioned of wanting someone with "US Experience" (which i have no idea how different it would be from experience gained in other countries especially if it is related to IT!)

Edited September 26, 2017 by abumiqdad

[narakthisud 174]

I was recently collecting job applications for my wife after she got her EAD/AP combo card. I noticed the follow-up question about sponsorship on a retail store's application. I, too, found it odd. But honestly, I'm pretty sure companies would prefer not to be forced into sponsoring a person unless that person was of high value to them. It's in the company's best interest to ask that question even if it seems a tad discriminatory in nature.

[-Trinity- 513]

I get that question with every application, it doesn't bother me that much. What really bothers me is the race question. Apparently i'm considered white, which i'm not. I also refuse to fill out the race question ( I m aware of the purpose, but I'm a firm believer that race doesn't qualify nor disqualify you for a job, it's your qualities and skills that matter), but some applications don't give you the option to check "other" or  "decline to answer". That to me is the most annoying part of almost every application I had to fill out.

 

Also, I had one recruiter telling me that I should put "authorized to work in the US" in my resume. According to him my resume will be overlooked since most of my work experience is overseas. To me it was a very odd advice, so I didn't list it on my  resume.

Edited October 4, 2017 by Beachlover

[Suss&Camm 2,213]

8 minutes ago, Beachlover said:

I get that question with every application, it doesn't bother me that much. What really bothers me is the race question. Apparently i'm considered white, which i'm not. I also refuse to fill out the race question ( I m aware of the purpose, but I'm a firm believer that race doesn't qualify nor disqualify you for a job, it's your qualities and skills that matter), but some applications don't give you the option to check "other" or  "decline to answer". That to me is the most annoying part of almost every application I had to fill out.

 

Also, I had one recruiter telling me that I should put "authorized to work in the US" in my resume. According to him my resume will be overlooked since most of my work experience is overseas. To me it was a very odd advice, so I didn't list it on my  resume.

There's also always a disclosure that the "race" information will in no way be used in the hiring process. It's just for statistical data on diversity in workplaces. They have to report it to the government.