Frequently Asked Questions on Employment of Foreign Nationals
I know that some discrimination laws apply to foreign employees, but during a job interview, may I ask an applicant whether he/she is authorized to work in the U.S.?
Yes. Since proof of legal work authorization is a legitimate requirement for employment, you may ask prospective employees about their work authorization status during the interview process. You should do so for all candidates. Documentation should not be requested until required for an I-9 (i.e., when or if employment begins).
A question that has reportedly been approved for such an inquiry is: "Will you now or in the future require sponsorship for an employment visa status?" If the answer to the question is "yes" an employer may take into account the additional financial burden required in making a hiring decision.
May I make a job offer to a candidate I know does not currently have work authorization?
Yes, but you should clarify that proof of identity and legal work authorization will be required no later than the third day of employment. One way of providing this notice is to include the following in letters offering employment: "The offer of employment specified in this letter is contingent upon your ability to provide proof of identity and work authorization documentation required by the Immigration Reform and Control Act of 1986."
You may also choose to enclose information about the types of documents that will be required. If applicable to all employees, a college or university could choose to request new employees to present documents for I-9 compliance a short time before employment actually begins. This may be helpful to avoid surprises (and terminated employment) by learning that required documents are not readily available. However, the documents should not be requested more than 30 days before employment is scheduled to begin so that the information is current.
If someone has a visa application that is still pending at the time employment is scheduled to begin, can the individual start work with the understanding that work authorization will be provided as soon as it is obtained?
No. Actual work authorization in compliance with I-9 requirements must be presented no later than three days after employment begins. Employment cannot begin (or must be terminated) if proper work authorization documents are not in place.
What do I do if I discover that someone who is working for the institution is not, in fact, legally authorized for employment in the US?
As with any personnel action, it is important that you make decisions based on facts rather than conjecture, so the first step is to verify that individual cannot provide evidence of employability sufficient to comply with I-9 requirements. Feel free to consult with the OGC or AGO for assistance. If an individual cannot make this showing, employment must be terminated immediately. An individual who was never properly authorized to be employed, generally, should still be paid if the individual has performed work. Consult with the OGC or AGO if you are faced with this situation.
Can an employee on an H visa that has expired continue to work while the application for an extension is pending?
If it is a routine extension, no change in employer or job duties, and the application isfiled before the visa has expired, the 240 day rule applies. This means that the employee may continue to work for 240 days without penalty, unless the extension is denied.
Kris Kaplan, Assistant General Counsel Presentation October, 2004: "I-9 Compliance and Issues on Hiring Foreign National Workers"
