Work authorization questions in interviews: what to ask and what to avoid

In a US interview, you can ask a candidate whether they are legally authorized to work in the United States and whether they will now or in the future need sponsorship for a work visa. Those two questions are the ones the Department of Justice's Immigrant and Employee Rights Section (IER) identifies as appropriate. What you should not do is ask about citizenship, national origin or specific immigration status beyond that, or request documents proving work authorization before an offer is made. This page covers the wording, the law behind it, and the difference between asking about authorization and verifying it.

This is a narrower question than illegal interview questions generally, which covers age, disability, family status and the rest. It is also earlier in the process than Form I-9 timing, which governs when you actually collect and examine documents after someone is hired.

The short answer: two safe questions

The DOJ's Civil Rights Division states on its IER frequently asked questions page that employers may ask applicants whether they have the legal right to work in the United States and whether they will need sponsorship for an employment visa. It also notes that asking for specific citizenship status information for purposes unrelated to a recruitment, hiring or firing decision is unlikely to violate the law on its own, but cautions that an applicant who is not hired after being asked such a question may reasonably believe the decision was based on citizenship status, which is why IER's own best-practice guidance recommends sticking to the two questions above.

What the anti-discrimination law actually covers

IER enforces the anti-discrimination provision of the Immigration and Nationality Act, 8 U.S.C. § 1324b, which the section's own page, Immigrant and Employee Rights Section, describes as prohibiting citizenship status discrimination in hiring, firing and recruitment or referral for a fee, national origin discrimination in the same contexts, unfair documentary practices during the employment eligibility verification process, and retaliation against people who assert their rights under the statute. Citizenship status discrimination and national origin discrimination are each their own category, which is why the same fact pattern, a candidate not hired after an authorization question, can raise both questions at once.

Coverage also depends on employer size, and it splits between two agencies. IER's own FAQ page and the USCIS Handbook for Employers describe IER as generally handling national origin discrimination charges against employers with 4 to 14 employees, with the Equal Employment Opportunity Commission handling national origin charges against employers of 15 or more. A small staffing agency is not exempt because of its size; it is simply the agency that would review a given charge that can differ.

Questions and practices that create risk

IER's guide, Best Practices for Recruiting and Hiring Workers, sets out several practices employers should avoid, beyond the two questions above:

• Job postings that say "US citizens only," "citizenship required" or "must have a green card," unless the position is one where citizenship is legally required, for example under a specific federal contract or statute.
• Postings or interview questions that assume a specific immigration status, such as asking only about a green card rather than the general authorization question.
• Requiring a Social Security number to apply or start work, since some work-authorized people, including recent arrivals and refugees, may not have one yet.
• Treating US citizens, noncitizen nationals, lawful permanent residents and people with asylum or refugee status inconsistently in the interview or hiring decision, where the law does not require a distinction.
• "Native English speaker" requirements used as a proxy for national origin rather than a genuine, job-related language requirement, for covered employers.

What to do with the answer

If a candidate says they will need sponsorship, that is information for the hiring decision, not a reason to ask for documents on the spot. IER's guidance on documentary practices carries the same principle into the verification stage: employers should not request specific documents, require more or different documents than the law requires, or reject valid documents, because of a person's citizenship status or national origin. Document examination belongs on Form I-9 after the offer is accepted, covered in Form I-9 timing in hiring, not during the interview. Asking to see a green card, passport or visa stamp before an offer is a form of prescreening on a protected category, even if it feels like due diligence.

A short example of how the exchange should go

Recruiter: Two quick questions before we go further. Are you legally
authorized to work in the United States?

Candidate: Yes.

Recruiter: And will you now or in the future need sponsorship for a work
visa, such as H-1B status?

Candidate: Yes, I'd need sponsorship in about a year when my current OPT
period ends.

Recruiter: Got it, thanks — I'll note that for the hiring team. [Continue
to the next interview topic. Do not ask for status documents, a visa
number, or a country of citizenship.]

Notice what the recruiter does not do: ask which country issued the visa, ask to see it, or ask why sponsorship is needed. The answer "yes, in about a year" is enough for a hiring manager or client to factor timing into a decision; anything more specific belongs to the immigration attorney handling the sponsorship, not the interview notes.

Job postings and application forms

The same two questions belong on an application form the same way they belong in an interview: a checkbox for authorization to work in the US, and a checkbox for whether the applicant will need sponsorship now or later. Application forms sometimes go further than that by accident, adding a field for citizenship, a field for visa type, or a required-documents upload before an offer exists. Audit your own application form and your applicant tracking system's default fields against the two-question standard, not just your interview script. Many applicant tracking systems ship with a default screening question written years ago by someone who has since left the company; check the actual wording live in the system, not the wording in a training deck.

Agency recruiters: when a client's job order goes too far

A job order that says "US citizens only" or "no visa candidates" should prompt a question back to the client: is this role one of the specific categories where citizenship is a legal requirement, such as certain government or defense contracts, or is it a preference? IER's page on best practices for recruiting and hiring notes that organizations that publish job postings for others should tell those third parties that discriminatory postings are against the law and should not run them. An agency that repeats a client's unlawful instruction in its own sourcing and interview questions can be exposed to a claim independently of the client, since referral for a fee is one of the activities 8 U.S.C. § 1324b covers directly.

A narrow set of roles genuinely are restricted by citizenship or immigration status: certain federal, state or local government positions, some roles under a specific federal contract, and positions that require access to technology or data controlled under US export regulations, where employers commonly limit access to US citizens, lawful permanent residents and certain other protected categories. If a client raises one of these, ask for the specific legal or contractual basis and put it in the job order in writing, rather than accepting "citizens only" as a preference. If no such basis exists, treat the instruction as a request you cannot follow as written, and say so to the client before you source against it.

A compliance checklist

• Use the two DOJ-identified questions, in that wording, rather than asking about citizenship or status directly.
• Ask the same two questions of every candidate for the role, not only candidates whose name, accent or resume prompts the question.
• Do not request identity or work-authorization documents before an offer is made and accepted.
• Check job postings and application form fields against the same standard, not only the live interview.
• Push back on a client instruction to exclude non-citizens unless the role is a confirmed legal exception.
• Route document collection and examination to your Form I-9 process, not to the interview.
• If a candidate volunteers immigration details you did not ask for, keep that information out of the interview notes that inform the hiring decision.

If you have questions or a complaint about a specific hiring decision, IER's worker hotline and employer hotline are listed on the IER Hotline page. For the document-verification side of a new hire, see I-9 remote verification and Form I-9 timing in hiring.