Douglas Olsen
In the United States, equal opportunity employers are prohibited from discriminating against applicants or employees based on race, colour, religion, sex, national origin, age, disability, or genetic information. While employers are not required to interview international students, they are also not permitted to impose a citizens only policy unless the job falls into specific categories. International students can obtain work authorization under specific circumstances, such as through Curricular Practical Training (CPT) or Optional Practical Training (OPT). Employers can ask about a candidate's work authorization but should refrain from inquiring about their national origin to avoid claims of discrimination.
| Characteristics | Values |
|---|---|
| Work authorization | International students can obtain work authorization under specific circumstances, such as Curricular Practical Training (CPT) and Optional Practical Training (OPT). |
| Visa status | Most international students hold F-1 or J-1 visas, which allow for initial work authorization but may require future visa sponsorship. |
| Employer responsibilities | Employers should confirm work authorization, provide equal opportunities, and avoid discrimination based on national origin, citizenship, or other protected characteristics. |
| Benefits of hiring international students | Organizations can gain a competitive advantage, access a diverse talent pool, and save on certain tax requirements. |
| Challenges | Employers may need to provide additional support or accommodations for international students, such as training or visa sponsorship. |
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What You'll Learn
International students' work authorization
International students can obtain work authorization in the US under specific circumstances, whether during their studies or after graduation. Most international students who are neither US citizens nor permanent residents enroll in academic programs under one of two non-immigrant student visa statuses: F-1 or J-1.
F-1 Visa
The F-1 Visa is the most common type of student visa, allowing for an initial 12 months of full-time work authorization through Optional Practical Training (OPT). F-1 students can accept internships or practical training in their academic field after one year of full-time study, known as Curricular Practical Training (CPT). Graduate students can accept CPT on the first day of their full-time study if it is required by their program. During CPT, students can work full or part-time, depending on the institution's policy. F-1 students may also be eligible for off-campus employment under certain conditions, such as severe economic hardship or emergent circumstances.
STEM OPT Extension
After completing their degrees, F-1 students can apply for a 24-month extension of their OPT, known as the STEM OPT extension. This extension is available for Science, Technology, Engineering, and Mathematics (STEM) students, allowing them to work full-time for up to 36 months after graduation.
M-1 Visa
The M-1 Visa is for students in vocational or non-academic programs, excluding language training. M-1 students can engage in off-campus employment, but it must be related to their area of study and authorized by the Designated School Official (DSO) and USCIS.
Work Authorization Process
The work authorization process for international students involves obtaining the necessary visa status, such as F-1 or M-1, and ensuring that their school is approved by the Student and Exchange Visitors Program. Students must also demonstrate financial ability and maintain a residence abroad. Before starting work, international students must confirm their work authorization with their employer to prevent future liability. While employers are not required to interview or hire international students without work authorization, they cannot impose a "citizens-only" policy unless the job specifically requires it by law or government contract.
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Employers' responsibility to accommodate religious beliefs
International students in the US are allowed to obtain work authorisation under specific circumstances, whether during their studies or after graduation. The F-1 visa is the most common type of student visa, and it allows for an initial 12 months of full-time work authorisation, called Optional Practical Training (OPT). During this period, employers do not need to secure work authorisation. However, employers are not required to interview or hire international students, and they can freely state that they will not sponsor or interview students with an F-1 or J-1 visa.
Employers must make a case-by-case determination of any requested religious accommodations. Examples of religious accommodations include scheduling changes, voluntary shift substitutions, and exceptions to dress or grooming requirements. For example, an employer might agree not to schedule work on an employee's Sabbath day or make an exception to a dress code to allow for religious garments.
Employees or applicants must make their need for religious accommodation known to their immediate supervisor, either orally or in writing. This may trigger an interactive process between the employer and the individual to discuss the request and assess available options.
While employers are generally required to accommodate religious beliefs, they are not obliged to do so if it would create an undue hardship for the company. This could include violating a seniority system, causing a lack of necessary staffing, jeopardising security or health, or costing the employer more than a minimal amount. If a schedule change would impose an undue hardship, co-workers may voluntarily substitute or swap shifts to accommodate the employee's religious belief.
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Prohibited inquiries by employers
While hiring international students, employers must refrain from asking questions that may give rise to claims of discrimination based on national origin. This includes questions such as "Are you from India?" or "You must be from South Africa". Asking about an applicant's national origin can lead to allegations that the decision not to offer a job was based on the individual's birthplace, ancestry, cultural background, or heritage.
Employers can, however, ask lawful questions to determine an applicant's work eligibility without specifically inquiring about their national origin. For example, employers can ask if the candidate is authorized to work in the United States and on what basis.
It is important to note that employers are not required to interview or hire international students who do not have permanent work authorization. However, most employers cannot stipulate that US citizenship is a job requirement. While refusing to hire or revoking a job offer to international students who require future visa sponsorship is lawful, it is essential to be aware of anti-discrimination laws, such as the Immigration Reform and Control Act (IRCA) and Title VII, which prohibit discrimination based on citizenship and national origin, respectively.
To avoid legal issues, employers should be informed about the various visa options available for international students and consult with career services professionals or international student services offices to ensure compliance with applicable laws and regulations.
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Discrimination based on national origin
National origin discrimination can also involve treating people unfavourably because of their association with someone of a certain national origin, such as a spouse or relative. It is important to note that discrimination can occur even when the victim and the perpetrator share the same national origin. Harassment based on national origin, including offensive or derogatory remarks, is also prohibited by law.
In the context of hiring international students, employers must take care not to violate IRCA or Title VII. While employers can ask about an applicant's work authorisation, they should refrain from inquiring about their national origin. For example, asking questions like "Are you from India?" or "You must be from South Africa" may give rise to claims of national origin discrimination. Employers should also be cautious not to have policies or practices that disproportionately impact individuals of certain national origins.
Additionally, employers cannot base employment decisions solely on an individual's foreign accent unless it seriously interferes with their job performance, as in the case of positions requiring effective oral communication.
By adhering to these legal guidelines, employers can ensure they are providing equal opportunities for international students and avoiding discrimination based on national origin.
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Work visa sponsorship
International students in the US are allowed to obtain work authorisation under specific circumstances, whether during their studies or after graduation. The most common type of student visa is the F-1 visa, which permits students to work on campus without a work permit, but they need a work permit for off-campus jobs or internships. F-1 visa holders are also granted 12 months of full-time work authorisation after graduation, called Optional Practical Training (OPT). During this period, employers do not need to secure work authorisation. STEM students can receive extensions of 24 months, thus allowing them to work full-time for 36 months after completing their degrees.
International students do not require visa sponsorships to participate in US internships. All international students are eligible to work in internships after the first year of their programs and do not require visa sponsorships from organisations. However, some employers may have set policies stating that they will not sponsor or interview F-1 and J-1 students, even though those students may have OPT or academic training allowing them to work temporarily after graduation.
Visa sponsorship refers to the process where an individual or organisation takes responsibility for supporting a foreign national to enter or stay in another country. In the workplace, employers may sponsor their employees to obtain a foreign visa and relocate abroad for a job. Each country has specific processes for obtaining visas and work permits for international employee transfers. To abide by the destination country's immigration laws, an employer gets the appropriate visas and work permits on their employee's behalf and pays any associated foreign worker levies and fees for visa applications, extensions, and renewals.
Employment-based sponsorship in US immigration refers to the process by which a US employer sponsors a foreign worker for a visa or green card to work or live permanently in the US. The employer takes on the responsibility of demonstrating that there are no qualified US workers available for the position and supports the foreign worker's application for immigration benefits. There are several employment-based visa categories, each with its own requirements and processes.
While visa sponsorship is beneficial for employers expanding internationally, it can also be challenging. Immigration laws and regulations are complex, challenging to navigate, and ever-changing. Employers and individuals unfamiliar with the visa process may have difficulty navigating the legal requirements. Employment visa sponsorship involves extensive documentation that can be a time-consuming process. Employers must gather and submit the required paperwork on the employee's behalf, including proof of qualifications, job offers, and financial stability, and risk delays if not done accurately. The fees associated with visa sponsorship and visa applications can also put a financial burden on both the employer and the foreign national employee.
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Frequently asked questions
Under the laws enforced by the U.S. Equal Employment Opportunity Commission (EEOC), it is illegal to discriminate against someone (applicant or employee) because of that person's race, colour, religion, sex, national origin, age (40 or older), disability or genetic information.
Yes, equal opportunity employers can hire international students as long as they do not discriminate against them based on the criteria mentioned above. International students can obtain work authorization under specific circumstances, such as through Curricular Practical Training (CPT) or Optional Practical Training (OPT).
Hiring international students can provide a competitive advantage to organizations as it allows them to tap into a diverse talent pool. International students bring global and intercultural fluency, proficiency in different languages, and knowledge of other countries' markets, business practices, and cultures.
