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Hiring Foreign Nationals

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Question:

What should I know about hiring foreign nationals and how can I avoid discrimination claims in the hiring process?

Answer:

It is important for employers to understand the federal laws and regulations regarding immigration status and national origin discrimination.  Discrimination may be happening without the employer even knowing, but guess what?  It’s still illegal and employers who participate in discriminatory behavior can be required to pay civil penalties and also backpay to any injured parties.

So, how can this be avoided? The U.S. Department of Justice, Office of Special Counsel offers some scenarios in which employers have violated discrimination laws.  Below are a couple of the major “don’ts” when it comes to hiring without discrimination.

  • Do not request additional documentation from non-US citizens that are lawfully authorized to work in the US. If non-US citizens are legally allowed to work in the US and they have supplied appropriate documents such as valid driver’s license or unrestricted social security card, they do not need to provide any other additional documentation.  They should be treated no differently than US citizens going through the same process.
  • Do not reject work authorization documents from non-US citizens but accept the same documents from US citizens.
  • Do not immediately rule out applicants that receive a Tentative Nonconfirmation (TNC) on E-Verify, as there could be many reasons why that notice was received.
  • Do not use E-Verify on a selective basis to rule out “foreign” candidates.
  • Do not reject applicants that “look or sound” foreign. If an employer is refusing to hire any applicants solely based on the fact that they look or appear foreign, this is an obvious violation of discrimination laws.   

Recordkeeping can be a challenge, especially when there are files everywhere! Keeping a handle on what is where is vital to staying compliant with the law and out of hot water. Know what to keep, where to keep it and for how long with our handy-dandy Recordkeeping Desktop Reference. It’s affordable, downloadable for immediate use, and only from Strategic HR Visit our Desktop Reference page to get your copy today.

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How To Say Sponsorship Is Not Available And Remain Compliant

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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 HR 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. Clark Schaefer Strategic HR 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.

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Just Cause Termination

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Question:

Can you terminate a stock room employee for failing to find a piece of needed equipment that he could not locate in the drawer when we had six on hand? He said we didn’t have the part when in fact we did.

Answer:

In an at-will State, an employer can terminate an employee for a bad reason, a good reason, or a silly reason – as long as the reason isn’t against the law. In your situation, the employee displayed either incompetence or inattention to detail and could in fact be fired for this reason alone. The qualifier in this, or in any case of termination, is whether the employee is being discriminated against because of age, race, religion, gender or disability. Each of these factors is covered by protective labor laws such as Title VII of the Civil Rights Act. Specifically, if employees who are Caucasian, for instance, are not fired for the same offense but only Black men, or Hispanic women, or people over 40 are fired there might be a case of (illegal) discrimination.

The deciding factor in a discrimination case is the answer to the question: was the employee fired for just cause (i.e., not locating a part and perhaps causing a lost customer) or fired solely because of race, color, etc.? To prove a just cause case you better be able to explain who, what, when, where, and why something occurred. Do you know why this person couldn’t find the part? Were they properly trained? Can you prove they were properly trained? Was there an investigation that can show that they knew what they were supposed to do and how to do it but just “didn’t do it”?

Bottom line – do a thorough investigation and make sure you have solid documentation. Without it any reason, or no reason, terminations are more likely to become discrimination lawsuits.

Terminations are one of the most difficult aspects of Human Resources. Even when justified it can be difficult to let someone in the workforce go. When not justified they can be a risky move for any company. Strategic HR can walk you through a termination, assist with the investigation and provide a third party objective look at each case. Visit our Employee Relations page to see how we can assist you with employment issues.