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Department of Justice Approves Pre-Hire Immigration Inquiries for Certain Applicants


Employers are often caught between the requirement to accept a valid documentation evidencing identity and employment authorization, on the one hand, and the need to administer a corporate immigration policy on the other.

One tool for administering a corporate immigration policy is to request that applicants confirm, early in the screening process, whether they will require immigration sponsorship.  Because applicants who are US citizens, permanent residents, asylees, refugees, and temporary residents under the 1986 amnesty law are protected from citizenship status discrimination, some employers believe that any pre-hire inquiry into immigration status is prohibited, even where the job applicant does not fall into one of those categories.

In an exchange of correspondence posted to his blog, attorney Angelo Papparelli recently received guidance from the Office of Special Counsel at the Justice Department, which is responsible for enforcing the anti-discrimination provisions.  He  requested guidance from OSC about how an employer could determine whether job applicants presenting employment authorization documents were only authorized to work because of a pending application for adjustment of status.  Such job applicants will only be able to continue their employment authorization if their application for permanent residence continues, and may need to present evidence to USCIS of their change in job.

OSC clarified that because temporary visa holders and applicants for adjustment of status to permanent residence are not protected from citizenship status discrimination, “an employment decision made exclusively on the basis of an individual’s status as a temporary visa holder or as an applicant for adjustment of status to permanent residence would not run afoul of the anti-discrimination provision.”  Employers can, therefore, feel free to make decisions about whether or not to hire an applicant who is a temporary visa holder or an applicant for adjustment of status in accordance with their corporate immigration policy.

OSC also provided guidance on the kinds of inquiry an employer wishing to discover information about an applicant’s immigration status may ask prior to making a hiring decision.  OSC approved use of a somewhat complicated question, albeit one which makes clear what information the employer is requesting about an employee’s need for future visa sponsorship.  OSC approved the following two questions for inclusion on job applications, so long as they are asked of all job applicants:

1.  Are you legally authorized to work in the United States?   _____ Yes _____ No

For purposes of the following question “sponsorship for an immigration-related employment benefit” means “an H-1B visa petition, an O-1 visa petition, an E-3 visa petition, TN status and ‘job flexibility benefits’ (also known as I-140 portability or adjustment of status portability) for long-delayed adjustment of status applications that have been pending for 180 days or longer.”  (Please ask us if you are uncertain whether you may need immigration sponsorship or desire clarification.)

2.  Will you now or in the future require “sponsorship for an immigration-related employment benefit?”  _____ Yes _____ No

This guidance is particularly helpful for employers conducting job searches for technically trained personnel, many of whom may have initiated the permanent residence process with other employers.  If you need further guidance on particular situations, please feel free to contact your Klasko Immigration Law Partners, LLP attorney.

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