Settlement Provides Best Practice for Immigration Queries During Hiring Process

A recent settlement between Microsoft Corporation and the US Department of Justice Civil Rights Division provides guidance to companies for avoiding discrimination liability when screening candidates for immigration work authorization as part of their hiring process.

Microsoft was found to have discriminated against several lawful permanent resident applicants by subjecting these candidates to unnecessary document requests to verify their immigration employment authorization.  Microsoft required them to complete a Visa Evaluation Questionnaire as part of the hiring process.

Lawful permanent residents are work authorized and should never be asked to provide documents proving this prior to completion of an I-9 Employment Eligibility Verification after hire.

In light of this settlement, what is the best practice for determining whether an applicant requires sponsorship as part of the hiring process?

It is important that applicants who are protected from citizenship discrimination (U.S. citizens, U.S. nationals, lawful permanent residents, refugees and asylees) be precluded from the visa evaluation process.  The Microsoft Settlement provides the following method for assuring compliance with citizenship discrimination provisions:

Any questionnaire or request for documents must clearly state that work authorized applicants are not required to provide information or documents about their immigration status.  Requests for immigration documents during the hiring process should be proceeded by this disclaimer:

“If you do not need sponsorship to work in the United States, such as if you are a U.S. citizen, U.S. national, lawful permanent resident, refugee, or asylee, you are not required to provide information about your immigration status or provide immigration-related documents.”  

This wording is suggested in the Microsoft Settlement.

If you use a questionnaire to request immigration related information, this disclaimer should appear on every page of the questionnaire.  If an applicant claims to be in one of these categories, do not ask any additional questions or ask which category the applicant is in.

The Microsoft investigation is just one of several recent citizenship discrimination investigations undertaken by the Department of Justice.  It is important that companies protect themselves from citizenship discrimination liability by taking this simple precaution when requesting immigration-related information and documents.