Changed Interpretation Affects Work Authorization Question on Employment Applications

 

For years, employers have understood that it is acceptable to ask applicants the question, “If hired, can you furnish proof you are eligible to work in the U.S.?” on their employment applications. And, until very recently, MSEC had this question on its sample applications forms for our members. Guidance from the Office of Special Counsel (OSC), however, indicates that this question might be worded too broadly and come too early in the hiring process. OSC believes that it is more appropriate for this question to come later in the hiring process after an offer of employment has been made. 

It is acceptable to change this question into an affirmative statement, such as, “If hired, you will be required to provide proof of your eligibility to work in the United States.” We have updated our sample application forms to include this statement.

It is also acceptable to inquire whether an individual will require employer sponsorship to be eligible to work for that employer in the United States. In that case, the application could include the inquiry, “If hired, will you require employer sponsorship now or in the future in order to be authorized to work for us under U.S. law?” And, it is acceptable to follow up when the answer is affirmative to determine the nature of the required processing to obtain work eligibility for the individual, including facts regarding national origin, visa status, immigration history, and the like. This is because employers are not required to sponsor non-U.S. workers for employment-based immigration benefits as long as the decision is made based on bona fide business considerations such as cost, legal restrictions, and processing delays.

Members using our sample applications should update those to reflect this change. MSEC sample HR forms in English and Spanish can be accessed at MSEC.org and by clicking here.