Legal Issues: Interviewing and Hiring International Students

May 1, 2013 | By Mark B. Rhoads

Legal Issues
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TAGS: international students, interviewing, journal,

NACE Journal, May 2013

Employers need to know how to determine if an international student will require visa sponsorship—and career services professionals also should be aware of this process so that they can effectively advise these students.

Clarifying the Laws on Hiring International Students

The laws that cause the most confusion regarding the recruitment and hiring of international students are:

  • The Immigration Reform and Control Act of 1986 (IRCA) requires that employers only hire people who are authorized to work in the United States. Employers must verify an employee’s identity and authorization to work in conjunction with the hiring process. It is therefore lawful for an employer to inquire about an applicant’s authorization to work prior to or during an employment interview. But should you? And if so, when?
  • When inquiring into whether an applicant is authorized to work as required by IRCA, employers must not violate other federal laws such as Title VII of the Civil Rights Act (Title VII), which prohibits discrimination based on national origin, religion, or other protected classes. Also, IRCA protects against discrimination based on citizenship status. Employers should therefore refrain from asking about a person’s citizenship, national origin, and so on.
  • Many students in F-1 or J-1 status (two common student visas) are authorized to work after graduation using F-1 Optional Practical Training or J-1 academic training. However, those students will eventually require sponsorship for work visas after the training period expires. An employer does not violate the law by refusing to sponsor an international student for an H-1B or other temporary work visa, or for permanent residence in the United States. Employers do not have to interview or hire foreign students in F-1 or J-1 status if the employer does not wish to sponsor them for a work visa in the future. Moreover, if an employer extends an offer to the student, and subsequently learns the student will require visa sponsorship, the employer can lawfully revoke the offer.

How can an employer determine if a student is authorized to work, or if the student will require visa sponsorship, without asking improper questions regarding national origin, citizenship, and so forth? Also, what if an employer only wants to interview or hire U.S. citizens? How can university career services practitioners help international students secure interviews, while not burdening employers who do not wish to sponsor these students for work visas or green cards? Here are some answers to these questions.

Deciding Whether to Interview an International Student

Some employers may have set policies stating that they will not sponsor, and therefore will not interview, F-1 and J-1 students, even though those students may have Optional Practical Training (F-1s) or academic training (J-1s) allowing them to work temporarily after graduation. This type of policy is lawful, and an employer can freely state that it will not interview or sponsor students in F-1 or J-1 status, and can also state that it will not sponsor them for work visas.

However, by adopting this type of policy, employers are excluding a significant pool of talented candidates. Often, employers adopt these policies because they lack information of the visa options available to allow the foreign students to continue working after graduation. Career services offices (and international students) should be prepared to explain to employers the visa options available, encouraging employers not to exclude the talent pool of qualified international students based on lack of information about available work visas.

Whether or not the company wishes to interview F-1 or J-1 students, all employers must take care not to violate IRCA or Title VII in their interviewing process. IRCA requires employers to verify the employment authorization of employees, and prohibits discrimination based on citizenship. Title VII prohibits discrimination based on national origin (and other protected classifications). The following information will help employers determine the employment authorization of interviewees, while not asking improper questions regarding citizenship or national origin.

U.S. Citizens Only?

Some employers have adopted rules that they will only interview or hire U.S. citizens. As a general rule, an employer cannot legally limit job offers to “U.S. citizens only.” An employer may require U.S. citizenship for a particular job only if citizenship is required to comply with a law, regulation, or executive order; is required by a federal, state, or local government contract; or the U.S. Attorney General determines that the citizenship requirement is essential for the employer to do business with an agency or department of the federal, state, or local government.

These exceptions are extremely limited in scope. An employer cannot simply impose a “citizens only” policy unless the job fits into one of the categories listed above. Even in those limited cases where “citizens only” may be allowed, the citizenship requirement must be related to a specific job that has been identified in the government contract, by law, or by the U.S. Attorney General. For example, an employer that is a U.S. Department of Defense contractor cannot require U.S. citizenship for all of its jobs relating to the contract if the contract identifies only certain jobs as requiring U.S. citizenship.

Accordingly, employers should not ask a job applicant about his or her citizenship during a job interview, unless the employer is confident that the job falls into one of the lawful bases for requiring U.S.-citizen applicants only.

National Origin Discrimination

National origin discrimination occurs when an individual is denied an employment opportunity or is treated differently because of his or her birthplace, ancestry, cultural background, or heritage. Employers should refrain from inquiring into an applicant’s national origin (i.e. “Are you from India?” or “You must be from South Africa.”). Asking such questions can give rise to claims that a decision not to offer a job was based on the individual’s national origin.

However, questions concerning an applicant’s authorization to work are appropriate and lawful. And, as noted above, it is perfectly lawful for an employer to refuse to interview or hire an international student in F-1 or J-1 status who will need future visa sponsorship.

Employers can ask lawful questions on job applications or in interviews. This can determine the applicant’s work eligibility without asking about national origin, and these questions should be asked of all applicants, not just “foreign” ones. Here are some examples:

  • Are you currently authorized to work in the United States on a full-time basis for any employer without restriction?
  • Will you now or in the near future require employment visa sponsorship (i.e., H-1B visa)?

If the applicant answers yes, the employer may then ask what the applicant’s current employment eligibility is based on, what the applicant’s immigration status is, and how long it will last. If the applicant answers that he or she is authorized to work, and will not require visa sponsorship, no further questioning about employment authorization, visa status, and so forth, is permissible.

Questions that are lawful can be stated on job applications, even prior to interview, and will allow employers to determine if an applicant will require work visa sponsorship. Employers can then determine if they want to pursue the applicant further. However, employers should not have a policy that disproportionately impacts employees of certain national origins. In other words, if an employer refuses to sponsor nationals only of certain countries, but will sponsor nationals of other countries, the employer may be open to claims of discrimination.

In addition, an employer should not ask the applicant’s country of origin or “native language” or treat students differently based upon his or her last name, color, or accent. The recruiter should ask all students the same questions, not only those who may “look” or “sound” international. Selectively questioning and advising students of work authorization requirements could raise questions of whether the recruiter is treating students unfairly based upon national origin.

Advising International Students

Career services professionals should advise international students of the work authorization requirements of U.S. law, and counsel students to learn about available work visas and the rules affecting those visas (timing, cost of obtaining the visa, and so on). Career services may counsel students that the more unique their skills and the more advanced their degree, the more likely that an employer will consider them for employment and sponsorship for an H-1B other employment visa. Also, students should not limit their search to just large employers, or to employers who have sponsored H-1Bs in the past. Each year, thousands of H-1B petitions are filed by smaller employers or employers who have never sponsored an H-1B before.

Advising Undocumented Students

Career services professionals at universities occasionally are asked to advise students who are in the United States illegally. As a general rule, students who are in the United States illegally have no ability to work. Students who are in the United States illegally and who wish to evaluate options for trying to gain a legal status should be advised to contact an experienced immigration attorney.

For certain individuals who are in the United States illegally, there is a program recently instituted by President Obama called Deferred Action for Childhood Arrivals (DACA). Under the DACA program, the U.S. immigration service has been directed to refrain from deporting certain “eligible individuals” who are in the United States illegally, and the “eligible individuals” can obtain work authorization. Eligible individuals are those who:

  • Are between 15 and 30 years old.
  • Entered the United States before age 16.
  • Have been present in the United States for five years as of June 15, 2012.
  • Have maintained continuous residence.
  • Have not been convicted of one serious crime or multiple minor crimes.
  • Are currently enrolled in high school, graduated or have a GED, or have enlisted in the military.

The new DACA program does not give a legal status to these individuals. But it does give them the ability to apply for work authorization. If a student wishes to explore this option, the student should again be advised to consult a qualified immigration attorney. No student who is currently in the United States legally should violate their status or overstay their lawful status in order to “make” themselves eligible for this program. Remaining legally in the United States is always better than becoming illegal.

Guide to Student Work Visas

There are several common options used by U.S. employers to hire international students in the United States, either for internships or after graduation. The most common paths are:

F-1 students: For internships or employment before graduation, use Curricular Practical Training (CPT) if available, or Optional Practical Training (OPT). For work after graduation, use Optional Practical Training work authorization, followed by the H-1B work visa.

J-1 students: For internships or employment before graduation, use pre-completion Academic Training. For work after graduation, use Academic Training work authorization, followed by the H-1B work visa.

Common Student Visas

According to U.S. immigration law, people who are legally in the United States fall into one of these categories:

  • Immigrants are people who have a permanent resident green card allowing them to live permanently in the United States and work largely without restriction. If an international student has a green card, the student can work in most jobs with no filings or fees required by the employer.
  • Non-immigrants are people who have a temporary visa allowing them to stay in the United States only for defined periods of time. Non-immigrant visas are designated by letter. There are temporary nonimmigrant visas that run from letters A to V. Some of these visa categories allow work, and some do not. The most common student visas in the United States are the non-immigrant visas F-1 (for students in degree programs at U.S. universities), and J-1 (for certain “exchange” visitors, also enrolled in degree programs in the United States). F-1 is the most common.

If a student is in the United States in F-1 or J-1 status, there are different rules that govern their ability to work, depending on whether the work will take place before the student graduates (such as an internship), or whether the work is employment after graduation.

F-1 Optional Practical Training (OPT)

Optional Practical Training (OPT) is a common way for employers to hire F-1 students, either before graduation for an internship, or after graduation. The employer pays no fees to hire a student using OPT and files no paperwork with the U.S. Citizenship and Immigration Services (CIS). OPT allows the student to work for any employer in a job related to the student’s degree program. Most students in F-1 status are eligible for a total of 12 months of OPT. However, F-1 students in STEM degree programs (science, technology, engineering, and mathematics) are eligible for 29 months of OPT.

F-1 students (including STEM students) can use OPT either during his or her course of study (for example for internships during summer breaks, or part-time while school is in session), or save all their OPT for use after graduation. OPT used during the degree program is subtracted from the time available after graduation. OPT must be authorized by the college foreign student adviser, and the student must apply for and obtain an Employment Authorization Document (EAD) from the CIS. The EAD resembles a driver’s license. It has a photograph of the student and authorizes temporary employment only for the time period stated on the card. It is not a green card, which is a card evidencing permanent residency. No work can begin until the EAD is issued.

To qualify for OPT, the work must be related to the student’s field of study. For OPT before graduation, the student can engage in full-time employment during school breaks (summer, holidays, and so forth), and parttime employment while school is in session (no more than 20 hours per week). Post-graduation OPT can be full- or part-time, but no less than 20 hours/week.

OPT Specifics

  • An undergrad is eligible for OPT only upon completion of one academic year. Graduate students may be eligible immediately upon enrollment.
  • A student working in OPT must have an EAD before starting work.
  • To use OPT after completion of a degree program, the student can apply for the EAD up to 90 days prior to completion of the degree program, or within 60 days after completion of the degree program. The student does not need a job offer to apply for the EAD.
  • It can take as long as 90 to 100 days for CIS to issue a work card. Therefore, it is important to apply well in advance of the intended start of employment or internship.
  • OPT is often an easy way for employers to “try out” employees before deciding to sponsor them for a longer term work visa such as H-1B.

J-1 Academic Training

J-1 students are not eligible for OPT. Instead, J-1 students are eligible for “academic training” during or after completing their education in the United States (18 months for most J-1 students; up to 36 months for post-doctoral research). This is similar to F-1 optional practical training. However, unlike F-1 students, the J-1 students engaging in academic training do not require an EAD from the CIS. The J-1 student will need a written offer letter noting that the employment is directly related to their field of study. The foreign student adviser at the student’s university will authorize academic training by noting the employment dates in the individual’s SEVIS record.

H-1B Visa

H-1B is the most common work visa in the United States. Using this category, U.S. employers are permitted to hire international graduates who have at least a four-year college degree, if they will work in a position requiring a college degree.

H-1B visas are available to persons with a four-year bachelor’s degree or the foreign equivalent; or to persons who can show by expert affidavits that their combination of education and qualifying experience is the equivalent of at least a U.S. four-year bachelor’s degree in the field.

Duration: An H-1B visa is valid initially for up to three years and can be extended an additional three years for a total of six years. Extensions beyond six years are available in limited circumstances.

Procedure: Only an employer can file an H-1B petition with the CIS. Employers usually file the H-1B petition while the employee is working using OPT or Academic Training. Filing an H-1B petition does not obligate the employer to keep the employee for the entire duration requested (usually three years). The employer retains full authority to terminate the employment.

Costs: The cost of the H-1B consists of the legal fee (if an attorney is used, which is advisable), plus the CIS filing fee. The CIS filing fee is $2,325 for employers with more than 25 employees, and $1,575 for employers with 25 or fewer employees. These fees are regularly increased by Congress. The U.S. government considers all fees and costs for the H-1B process to be employer expenses.

Family: The spouse and children of H-1B employees receive H-4 visas and cannot work under that category.

H-1B Quota: CIS issues 85,000 new H-1B approvals each fiscal year (October 1 through September 30). Graduates with U.S. advanced degrees have special allocation of 20,000 H-1Bs of this 85,000 quota. Exceptions to the quota are university jobs; H-1B extension with same employer; or H-1B transfer to new employer. Employers can file an H-1B petition as early as April 1 for the October 1 quota.

Other Work Visa Options

These are more narrow and specialized, such as TN (for Canadians and Mexicans working in certain jobs listed in the NAFTA treaty), E-3 (for Australians working in bachelor’s degree-level positions), O-1 (for individuals of extraordinary ability), Q-1 (for cultural exchange workers), L-1 (for employees of multinational companies) and E-1 or E-2 (for companies owned by citizens of countries with treaties of trade or commerce with the United States). For information on these options, consult a qualified immigration attorney.

Copyright 2013 by the National Association of Colleges and Employers. All rights reserved.

blank default headshot of a user Mark Rhoads is a partner in the Immigration Practice Group of the law firm of McCandlish Holton, PC. He regularly provides immigration advice to U.S. employers as well as university career services offices from coast to coast. In addition, he regularly lectures across the country on immigration law topics to attorneys, business groups, and university groups. He is listed in Best Lawyers in America in Immigration Law, and is a member of the American Immigration Lawyers Association.