This is a sticky issue with foreign workers because national origin is a status that is protected by U.S. employment discrimination laws, with the exception of foreign workers who are not legally authorized to work in the United States. For this reason some initial disclosure of legal work status may be advisable under certain circumstances prior to being asked.
The authorization of employment of foreign workers, and verification of their legal status in the United States, is regulated by the Department of Homeland Security, U.S. Citizenship and Immigration Services. This agency grants legal status to foreign workers through the issuance of a variety of permanent work authorizations (often generally referred to as “green cards”) and temporary work visas.
Green cards are issued to foreign workers who can show that there is a shortage of workers in their field and that their pay rate does not undermine the prevailing pay rate of U.S. workers. This involves a labor certification process that typically takes from two to six months. There are other documentation and interviewing requirements that can make the process rather lengthy. Once the process is complete the worker can work for any employer in the United States. Unlike permanent work authorizations, temporary work visas are typically tied to a particular business or academic organization that must act as the foreign worker’s sponsor. The foreign worker must obtain a new work authorization to change employers in the United States.
The verification process is performed by employers who must require all new employees to complete an I-9 form at the time of hire. This document requires the employer to verify the employee’s authorization to work in the United States, by examining various documents listed on the form, at the time of hire. The employee must certify their specific work authorization status (citizen, non-citizen national, permanent work authorization, temporary work authorization) on the form. A foreign worker who requires sponsorship for a temporary work authorization will not clear the I-9 hurdle unless the sponsorship and temporary work authorization have been granted. Employers are required to keep the I-9 form on file for three years, or one year after employment ends, whichever is longer. The U.S. Department of Labor enforces these requirements through employer record inspections, which may be conducted without warning.
These regulations mean additional time and money costs for businesses that hire foreign workers due to the need to hire additional staff and outside professionals to provide compliance, as well as the expense of obtaining and converting work visas to permanent employment authorizations. These costs form a significant burden on employers that add to fears that already exist regarding the hiring of any new employee. The employer’s guard goes up when the prospect’s initial employment marketing documents (resume and cover letter) indicate that he or she may be a foreign national.
An employer may not legally ask questions about national origin in the pre-hiring process. For this reason a job candidate is not required to provide this information until they complete an I-9 form after an offer has been extended and accepted. This is a problem for a foreign worker who needs a sponsored temporary work visa to begin work. If they wait until they are hired to disclose their status to the employer they risk withdrawal of the employment opportunity. The withdrawal based on national origin is legally permissible and the employer may justify it, from a business standpoint, on the sudden confrontation with additional and significant time and expense involved in putting this person to work. For this reason the foreign worker should disclose their status earlier in the hiring process.
The real question at this point is: When and how do I make this disclosure? Do I put it in a resume, a cover letter, or both? Do I leave my need for sponsorship out and disclose it at an interview? This depends very much on the specific context of the employment opportunity, an assessment of how an employer will react to a particular disclosure at a particular time, and the obviousness of the candidate’s status as a foreign national. Finally, and perhaps most important for a candidate, is the need to make any disclosure in manner that is positive and contributes to the candidate’s ability to sell their employability.
In the case of permanent work authorization (“green card”) holders, disclosure depends on how obvious their national origin is on the face of their resume. If their foreign nationality is not apparent then there is probably no need to make a disclosure. If the opposite is true a green card holder must address it through disclosure in terms of where, how, and when, or risk being screened out of consideration based on a faulty perception that more effort is involved in hiring this worker than would be required for an American worker.
Candidates who fall under either the temporary worker or the permanent residence status, and who are confronted with making a decision of whether or not to make a disclosure related to their foreign national status, should consult an employment professional who is well versed in interview coaching, resume writing, and the system for employing foreign workers in the United States. This professional can help you determine whether to make such a disclosure during the employment process, and when and how to do so. These are very important considerations in helping you win the job in a very competitive job market.
By Michael G. Kelly, J.D., M.A., B.B.A.
Certified Advanced Resume Writer, Certified Employment Interview Consultant, Certified Web Portfolio Practitioner
Michael Kelly is a Licensed Attorney and former Corporate Counsel in the Information Technology industry with extensive experience dealing with employment immigration matters. He is a State Certified Career Educator and an industry certified Professional Resume Writer, Employment Interview Consultant, and Web Portfolio Practitioner. Michael is Principal of LOGIKEL SOLUTIONS, LLC, a turnkey professional career services firm. He may be reached at kellmich@logikel.com
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