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How To Say Sponsorship Is Not Available And Remain Compliant

Last Updated on September 5, 2023 / Recruitment

wooden letter tiles spelling H1B visas

HR Question:

Although we need to find ways to broaden our recruiting efforts, our company is not able to provide sponsorship to candidates who want to work legally in the United States and need an H1-B Visa. How do we say that sponsorship is not available on our employment ads to avoid problems? Can we hire someone who has been granted political asylum?

HR Answer:

These are great questions! Let’s break it down and address each one separately.

Am I required to accept applicants who need an H-1B Visa?

Due to the ease of access, online job ads and recruiting efforts can generate a multitude of candidates, including those who are not yet authorized to work in the United States. For some companies, this is a benefit as it allows them to access a wider talent pool. For others, particularly smaller organizations, it can be a financial hardship for them to sponsor or transfer an H-1B Visa for employees who require an employment Visa to work legally in the U.S.

It is important to clarify that employers are not required by law to sponsor an H-1B Visa for a candidate who is not eligible to work in the United States. It can help both your organization and candidates to know upfront if you are unable to provide sponsorship. You can freely specify “no sponsorship” in a job ad and refuse to consider people who are not already authorized to work in the U.S.

How can I communicate sponsorship is not available in our job ad?

There are multiple ways that you can communicate this message, but we have commonly seen the use of the following language:

“Applicants must be authorized to work for ANY employer in the U.S. We are unable to sponsor or take over sponsorship of an employment Visa at this time.”

Can I hire individuals who were granted asylum?

To address your second question regarding whether you can hire a candidate who has been granted political asylum, the answer is yes – if they have followed the proper process. Individuals entering the United States seeking protection/asylum can remain in the U.S. and apply for asylum within one year of arrival. These individuals are not eligible to apply for permission to work (employment authorization) in the U.S. at the same time they apply for asylum. They are, however, able to apply for permission to work after 150 days of their asylum application if they are still awaiting a decision on their application.

The federal government grants refugee and asylee status to people who have been persecuted or fear persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Because of their status, refugees’ and asylees’ permission to work does not expire.

On March 29, 2022, U.S. Citizenship and Immigration Services (USCIS) announced it will extend asylum seekers’ work permits so that they are valid for a longer period of time while renewal applications are pending. The current auto-extension period is 180 days.

A person granted asylum is protected from being returned to his or her home country; is authorized to work in the United States; may apply for a Social Security card; may request permission to travel overseas; and can petition to bring family members to the United States.

Individuals granted asylum may work immediately. Some asylees choose to obtain Employment Authorization Documents (EADs) for convenience or identification purposes, but an EAD is not necessary for asylees to be able to work. Visit I-9 Central to determine how to properly complete the I-9 form for an asylee and what identification is needed by the Department of Homeland Security.

As you seek to make the right decisions for your organization, remember that it is best practice to consult your attorney to ensure your legal compliance.

Thank you to Cecilia Vocke, MS, SHRM-SCP, SPHR, Senior HR Business Advisor and Melinda Canino, MS, Senior HR Communications Advisor for contributing to this HR Question of the Week.

VISAs, EADs, I-9s – An alphabet soup of acronyms and rules pertaining to the hiring of a foreign national. It can be confusing, even to the experienced HR professional, if you aren’t familiar with the process. Strategic HR Business Advisors can help you navigate through the process to ensure everything is handled correctly. Visit our Outsourced Recruitment page to learn more about how we can help.