Is it legal to discriminate in employment based on needing future sponsorship?

Question

Currently I have authorization to work in United States and I am actively looking for a job.

I was contacted by a recruiter of a "too big to fail" company and they asked whether I am authorized to work in USA without sponsorship now and in the future. Since I have my work authorization I am authorized to work but in future I would require visa sponsorship. I replied, "Yes, I am authorized to work in the USA but in future I would require sponsorship."

Within an hour the recruiter notified me that the interview was cancelled because the company does not sponsor visas for entry-level jobs.

The following paragraph appears in Form I-9:

ANTI-DISCRIMINATION NOTICE : It is illegal to discriminate against work-authorized individuals. Employers CANNOT specify which document(s) they will accept from an employee. The refusal to hire an individual because the documentation presented has a future expiration date may also constitute illegal discrimination.

So is the failure to consider my candidacy for this reason illegal? I may need a visa sponsorship in the future but I don't need any sponsorship to accept and start the job if offered.

Answer 1

I work for a U.S.-based Fortune 500 company and I've been instructed to ask candidates during interviews, "Are you authorized to work in the United States, without need of current or future sponsorship?" My employer has a substantial legal staff; if that wording was illegal, I'm sure I would never have been told to use that question and would have been warned not to use it.

The paragraph on the I-9 form says that "refusal to hire because the document presented has a future expiration may also constitute illegal discrimination." (emphasis added) The same paragraph also has a link to the Department of Justice website, on which one can find a page "Types of Discrimination", which includes:

Employers may not treat individuals differently based on citizenship or immigration status. U.S. citizens, recent permanent residents, temporary residents, asylees and refugees are protected from citizenship status discrimination. Exceptions: [...] Citizenship status discrimination which is otherwise required to comply with law, regulation, executive order, or government contract is permissible by law.

and

Employers may not treat individuals differently because of their place of birth, country of origin, ancestry, native language, accent, or because they are perceived as looking or sounding "foreign." All U.S. citizens, lawful permanent residents, and work authorized individuals are protected from national origin discrimination.

However, the legal basis for those requirements appears to be 8 U.S.C. § 1324b, which only outlaws discrimination

(A) because of such individual's national origin, or (B) in the case of a protected individual (as defined in paragraph (3)), because of such individual's citizenship status.

National Origin discrimination could occur in the case of a citizen as well as in the case of a noncitizen with work authorization. If a boss turns away an applicant saying "I don't hire Irish, Mexicans or Japanese people", that's discrimination whether the applicant's great-great-grandparents were nationalized in 1880 or the applicant got off the airplane from said country yesterday.

Protected Individual discrimination only occurs against certain classes of people:

• Citizens
• Lawful Permanent Residents
• Family-Sponsored Immigrants (§ 1153)
• Seasonal agricultural workers who worked in the U.S. for at least 90 man-days during the 12-month period ending on May 1, 1986 (§ 1160)
• Refugees (§ 1157)
• Asylees (§ 1158)

If you would need future sponsorship, I don't think you fall into any of those groups. Furthermore, the inquiry about immigration status was in a conversation with a recruiter, not in the context of filling out the I-9 form itself; so the rule about "future expiration" of a document is arguably not applicable.

Answer 2

8 USC 1324b is the appropriate section. In order to have unlawful discrimination based upon immigration status, the victim must be a protected individual.

No protected individual requires visa sponsorship.

(3) “Protected individual” defined

As used in paragraph (1), the term “protected individual” means an individual who—

• (A) is a citizen or national of the United States, or

• (B) is an alien who is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under section 1160(a) or 1255a(a)(1) of this title, is admitted as a refugee under section 1157 of this title, or is granted asylum under section 1158 of this title; but does not include (i) an alien who fails to apply for naturalization within six months of the date the alien first becomes eligible (by virtue of period of lawful permanent residence) to apply for naturalization or, if later, within six months after November 6, 1986, and (ii) an alien who has applied on a timely basis, but has not been naturalized as a citizen within 2 years after the date of the application, unless the alien can establish that the alien is actively pursuing naturalization, except that time consumed in the Service’s processing the application shall not be counted toward the 2-year period.

Answer 3

I can virtually guarantee you that in the U.S. that is not illegal, the point of visas is when people with those skills are not available within the U.S. If the company does not sponsor anyone, then it means those people are available and therefore the government wants them to hire from within the U.S. but I am not a lawyer.