Can we refuse to consider a candidate who is not eligible to work in the United States and would require sponsorship for an H-1B visa?

Yes. An employer is not required by law to sponsor for an H-1B visa a candidate who is not eligible to work in the United States. An employer may have a policy, applicable to all positions, that it does not sponsor employment visas; or an employer may have a policy listing specific positions (typically hard-to-fill positions) that are eligible for sponsorship.

Before an employer decides whether to sponsor an employee for work authorization, the employer should look at its staffing plan. Some employers, due to the nature of the services they provide, tend to have hard-to-fill positions, whereas others find that they are able to meet their staffing requirements fairly easily. If your company is part of the latter group, then sponsorship might not be a feasible recruiting tool.

Because sponsorship of an employee's work authorization will take time and require an ongoing financial investment, an employer should consider the process and responsibilities involved. To sponsor an H-1B visa holder, the job must be a "specialty position," and an employer needs to file a Labor Condition Application (LCA) to start the process. An employer also must adhere to certain stipulations regarding wages and working conditions. Further, an employer will be required to pay for certain costs associated with work-related visas it decides to sponsor—in particular, the labor certification.

An employer must act consistently with the company sponsorship policy to avoid discrimination issues. Employers are encouraged to discuss sponsorship with an immigration attorney before proceeding.