HR Tips: Do’s and Don’ts in the Interview Process

In recent years, the US government has been actively investigating and resolving claims of discrimination in the employment selection process.  Applicants are safeguarded against discriminatory hiring practices by legislation such as the Immigration and Nationality Act (INA) and Title VII of the Civil Rights Act of 1964 (Title VII). The INA incorporates an anti-discrimination provision that prohibits discrimination based on an individual’s citizenship status. 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. Title VII protects individuals under the National Origin Discrimination section from discrimination that involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).  Both sets of legislation provide job applicants with extensive protection from discrimination.

It is important to note that employers are not legally obliged to provide sponsorship for work authorization visas and possess the legal authority to decline employment based on the absence of sponsorship for a specific position or all open positions.  However, if a no-sponsorship policy is used for a specific position or all open positions, it must be applied consistently and in a non-discriminatory fashion regardless of race, gender, national origin, or any other category protected by law.

Bashyam Global Immigration Group frequently receives inquiries from employers regarding how to legally determine if a job applicant necessitates sponsorship to work in the United States or for their organization. We understand that obtaining the necessary information to ascertain if a job applicant requires sponsorship, and doing so lawfully, is challenging. Fortunately, employers are permitted to inquire if job applicants possess the legal right to work in the United States and if they will require sponsorship for an employment visa to legal work in the US and for their company.  The US Department of Justice (DOJ) has stated in opinion letters that employers may use these acceptable qualifying questions concerning the ‘legal right to work’ to determine if a job applicant requires sponsorship to work in the United States and for the company:

• Are you authorized to work lawfully in the United States?
• Will you now, or in the future require [company name] to commence (sponsor) an immigration case in order to employ you (for example, H-1B or other employment-based immigration case)?

If an employer chooses to inquire about these qualifying questions, they must pose identical ‘legal right to work’ questions to all job seekers. Employers cannot selectively choose to ask the ‘legal right to work’ questions to applicants who are perceived to require sponsorship based on factors such as their name, accent, or education, while not asking the same questions to those whom they believe do not require sponsorship.

To ensure uniformity in posing the ‘legal right to work’ questions to all applicants, employers can incorporate these inquiries into the qualifying questions section of their Applicant Tracking System (ATS). If an ATS is not utilized, recruiters should have reminders to ensure they ask these questions to all applicants.

Employers are prohibited from asking job applicants intricate questions about their immigration or citizenship status or making specific requests during the interview process, that could be considered discriminatory practices.  Examples of impermissible questions and requests during the interviewing process include:

• Requesting or implying which documents an applicant must provide to establish their eligibility for employment during the interview, such as a US birth certificate or Social Security Card.
• Asking where the applicant was born and/or grew up.
• Inquiring about how an applicant learned a foreign language.
• Asking if an applicant has a work authorization visa and the expiration date.
• Inquiring about how an applicant obtained citizenship.
• Querying if an applicant possesses a Green Card
• Asking if an applicant is a US citizen, unless US citizenship is legally required by law, regulation, executive order, or government contract. These exceptions will not apply to most employers.

It is essential that an employer does not request to see employment eligibility verification documents or require a candidate to complete the Form I-9 prior to the job offer being made.  Only after the applicant has accepted the offer may the employer begin the process of obtaining a work authorization if it is required.

Employers should exercise caution in the language used in their job postings. By using language that limits job opportunities based on citizenship status, employers run the risk of violating the law. Examples of such impermissible language include:

• “H-1Bs or OPT Candidates Preferred.”
• “Only US Citizens or Green Card Holders” (Unless US citizenship is legally required by law, regulation, executive order, or government contract.)
• “Must present US birth certificate.”
• “Only native English speakers should apply.”
• “Only H-1Bs”
• “Limited to H-1Bs and students (OPT/CPT)”
• “US passport holders only.”

The DOJ has stated in an opinion letter that it is permissible for employers to notify job applicants in job postings that they are unwilling to sponsor nonimmigrant visas.  The DOJ’s recommended language is as follows: “Applicants must be currently authorized to work in the United States on a full-time basis.”

It is legally permitted to inform all applicants that if selected for employment, they will be required to provide documentation within three days from the date of hire to verify their legal eligibility to work in the US and with the company.  The Equal Employment Opportunity Commission (EEOC) recommends including the following statement in job postings or the ATS:

“In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification document form upon hire.”

An employer may include this statement in job offer letters.  However, if it is included, it must be included in all offer letters, not just those offer letters the employer believes the individual requires work authorization.

To minimize the chances of someone during the interview process setting up a scenario that could lead to a discrimination claim, it is strongly advised that all individuals involved in conducting interviews undergo compulsory training and regular refresher courses on lawful interviewing techniques. This encompasses company recruiters, candidate evaluators, contracted recruiters, interview panels, and managers. Should a candidate perceive a question as discriminatory, regardless of the person asking it, the employer may be accused of engaging in discriminatory practices.

Obtaining all the necessary information through the interview process to make hiring decisions is challenging. Employers must be mindful and avoid the legal pitfalls that exist throughout the hiring process. Bashyam Global is available to assist employers in navigating these legal pitfalls. We offer consultation services and provide management training to protect your company from unnecessary legal complications.