Checklists Compliance/Best Practices Employment Law

Immigration Issues Dos and Don’ts for Job Interviews

interview_164665580There are many subjects that require care when conducting a job interview. Immigration is definitely one of them. Given the increased awareness and sensitivity to immigration status issues, employers need to watch their questions.

Although each applicant’s particular situation may raise unique issues, and employers thus must be prepared to modify interview procedures in response to an applicant’s circumstances, here is some guidance for employers in preparing for applicant interviews:

  • In most situations the employer should never ask about an applicant’s citizenship or immigration status. In general an applicant may not need to be a U.S. citizen or even be a lawful permanent resident (have a “green card”) to be authorized to work in the United States.
  • The employer may ask if the applicant may legally work in the United States and can provide proof of such on hire. If this question is asked verbally, the company must ask it of every applicant; the best way to address this issue is to simply ensure that this question is on the company’s written application for employment and that the application is completed fully.
  • The employer may not ask the applicant to provide work authorization documents until after hiring.
  • Even if an applicant discloses that he or she has temporary work authorization, the employer should not ask him or her about the duration of the authorization or discuss it any further.
  • If a candidate requests that the company sponsor him or her for work authorization during the interview, the interviewer should explain the company’s uniform policy on sponsorship. If sponsorship is an option for that particular job position, the interviewer should simply state that if the candidate were selected for the position, Human Resources (or other specified personnel) would discuss sponsorship further with him or her.

Immigration law compliance is receiving increasing media and enforcement attention in a wide range of contexts, making it crucial that employers and their counsel understand what they must, may, and can’t do. Immigration law requirements for employers is covered in CEB’s Advising California Employers and Employees, chapter 4. Issues specific to hiring, including many sample forms and checklists, are in CEB’s Drafting Employment Documents for California Employers, chapter 2.

Related CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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