During the hiring process, employers in Naperville often wonder about questions they should be asking regarding immigration issues. Because employers are prohibited from discrimination in hiring, they are not permitted to ask about certain facets of an employee’s life. At the same time, if employers hire an employee who is not authorized to work, they face severe penalties.
Questions to ask new employees in Naperville should be phrased carefully to avoid legal problems at either end of the spectrum. An immigration lawyer could assist with the process of developing a list of questions designed to elicit necessary information without subjecting an employer to potential liability for discrimination.
The first question an employer could and should ask with respect to immigration issues is whether the employee is legally authorized to work in the U.S. for that employer. However, an employer may not require an employee to demonstrate that eligibility until after the employee has been hired.
Also, it is not generally advisable to ask whether the employee is authorized to work on an “unrestricted basis” because that could be taken as a question regarding citizenship status. Questions about citizenship could be a sign of discrimination which could leave the employer open to a complaint with the Equal Employment Opportunity Commission (EEOC) or even a discrimination lawsuit.
Employers may ask potential employees whether they will require sponsorship to work legally in the U.S. either now or the future. If they choose to ask this question of one prospective employee, they should do so for all potential employees to avoid giving the impression of discrimination.
If an employee indicates that employer sponsorship will be necessary, the employer may ask if the potential employee is in a period of Optional Practical Training. The employer may also ask whether that person is eligible for an extension based on a degree in a STEM subject from a qualifying U.S. educational institution.
To keep employers from deterring otherwise qualified employees, employers may not ask about citizenship or immigration status. In addition, employers may not ask if a prospective employee could provide proof that they are legally eligible to work in the U.S lawfully for 12 months or more.
After an employer hires a new employee, the employer will need to verify the employee’s work authorization. Therefore, the employer should ask the employee to fill out a Form I-9 and to provide the forms of documentation requested on the form.
However, the I-9 form lists many types of documents that provide an acceptable means to prove identity and work eligibility. An employer may not specify which kinds of documentation the employees provide as long as they are able to provide ones that satisfy the requirements of the form.
Information about employment eligibility questions for employees who have already been hired may be obtained from Immigration and Customs Enforcement (ICE). Information about discriminatory practices to avoid and prohibited questions regarding citizenship, immigration status, and national origin may be available through the EEOC. The Department of Justice’s Office of Special Counsel for Immigration Related Unfair Employment Practices has also issued information to assist employers.
Many employers find it helpful to consult an immigration attorney for assistance with formulating questions to ask new employees in Naperville. A lawyer with experience in this area of law could help an employer tread the narrow line that exposes them to liability for discriminatory invasiveness on one side and liability for failure to ask sufficient questions to verify employment authorization on the other.