The Rule on Ruling out Foreign Applicants

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Q: If an employer has two equally qualified applicants, one of whom is a foreign national, can the employer make a decision not to hire the foreign national because of the costs involved in obtaining licenses, etc., without risking issues of discrimination?

A: An employer may make a business decision not to take on additional costs by deciding to hire the less expensive candidate, but we do not think it is as easy as just saying, "No visas sponsored here." For example, what happens if the U.S. worker demands a higher starting salary than the foreign worker? If so, we think your cost-savings argument goes right out the window.

Here is our speech: "Prejudice" comes from two words-"pre" meaning before the fact and "judge" as in making a judgment about someone. (We're making this up, but you get the point.) What all discrimination laws have in common (and what juries really, really catch on to) is an attempt to eliminate pre-judgment. To assume that the foreign worker is more costly because of "licensing" and so on is to judge the foreign worker before you get the facts. Aside from whether it is "right" or not (as in moral or ethical or the like), it might lead to a lawsuit.

In our view, each candidate should be judged on his or her qualifications. If the candidate does not have the "license" or does not meet some other requirement, then the employer may lawfully (and defensibly) refuse to make that applicant an offer. If the applicant gets and accepts an offer, and does not have 1-9 documentation, then the employer must terminate the employee. (That is the law.) If the applicant lets you know after being hired that his or her status is one that requires a sponsor, then you can decide not to be that sponsor. The law does not require you to become one, and the financial obligations of some visa classifications (return transportation and expenses to the country of origin) are a perfectly good reason to decline to become a sponsor.

We would not advertise that the employer excludes certain applicants just because of the type of visa they are working under.

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