You have an open position at your company, and while going through resumes, you notice a candidate who seems perfect for the job. The only issue is that all their previous work experience is from foreign companies. Still, you call to set up an interview and notice that they speak with an accent.
So, can you ask a potential employee if they are a U.S. citizen? Do they have a work visa? Are they authorized to work in the U.S.? You can ask these questions. But, ask carefully!
On the one hand, the Federal Immigration and Nationality Act (INA) of 1952 prohibits employers from discriminating against people based on their real or perceived citizenship or immigration status. However, on the other hand, the Federal Immigration Reform and Control Act (IRCA) of 1986 requires you as an employer to verify that all your workers are eligible to work in the U.S.
Understandably, this can lead to confusion. Many employers often have questions regarding whether they can inquire about citizenship status when making hiring decisions and whether the applicant’s status should impact their hiring decisions. The question you should be asking is: “How can I strike this balance?”
Let’s go through what you need to know.
When You Can Ask
The Immigration Reform and Control Act requires you to verify your employees’ eligibility status, even those you know to be U.S. citizens. However, the same Act prohibits you from asking people to prove their citizenship or work status before offering them employment.
What this means is that you can only verify a person’s eligibility status after you’ve made the decision to hire them.
However, you can inform potential candidates that you plan on verifying their authorization status upon selection. The Equal Employment Opportunity Commission (EEOC) recommends adding the following statement on employment applications to ensure compliance.
Keep in mind that your employment application forms should not garner a response that would indicate an applicant’s nation of origin or employment authorization status. Although you’re not explicitly forbidden from asking such questions, they could be used as evidence of intent to discriminate.
Ask, But Ask Carefully
But, there’s a way to determine work authorization beforehand. You have to ask each applicant the same question in the same way. To avoid bias, it’s best to ask this question prior to the interview. Remember to mind your language. Any hint of bias could make you liable to discrimination charges and investigations by the Department of Justice’s Office of Special Council (OSC).
Note: The question must be phrased solely to determine a candidate’s ability to work legally in the U.S. It bears repeating – you should not ask about the candidate’s immigration status or citizenship.
Here’s one way you can phrase this question.
Are you legally authorized to work in the United States for ________ company? Yes or No
Or
Do you now, or will you, later on, require sponsorship for employment visa status to legally work for our company in the United States? Yes or No
Note: If hired, Employment Eligibility Verification will be carried out upon selection.
Such questions are permissible because they are designed to determine potential hires’ eligibility status or whether you would have to sponsor the applicant for which you are under no legal obligation to do so. The INA’s anti-discrimination policies prohibit discrimination against certain “protected individuals,” including:
- U.S. Citizens and nationals
- Lawful permanent residents
- Refugees
- Asylees
You’ll notice that the protection does not extend to temporary visa workers. As a result, the decision not to hire someone based on their need for visa sponsorship is not actionable under the INA’s anti-discrimination provisions. Then again, this is tantamount to wading through murky waters because you would have to prove that this was the sole reason you couldn’t hire that particular individual. And you cannot refuse to hire someone because their visa will expire in the future.
Also, you must ask every applicant the same questions to ensure you treat everyone fairly and equally.
Employment Authorization Status
As an employer, it’s your responsibility to maintain a legal workforce. By law, you are required to verify the identity and employment eligibility of all your employees. From the minute you bring a new hire on board, you have three days to fill out Form I-9, Employment Eligibility Verification. Always ensure you use the latest form as the I-9 is periodically updated by the U.S. Citizenship and Immigration Services.
On the form, an employee must attest to their employment authorization and provide proof of the same. You’re required to examine the employment eligibility and identity documents and determine whether they remain reasonably genuine. But, you cannot ask for documents not listed in the I-9 list of eligible documents. Asking for further proof can be used to indicate intent to discriminate.
The law bars employers from rejecting valid documents, and the onus is on the employee to choose which of the permitted documents they produce as proof for verification. As long as the document looks reasonably legit, you should accept it.
So, what happens when a prospective hire doesn’t have work authorization? If you want to, and depending on the employee’s qualifications, requirements of the job, and the amount of time you’re willing to expend, you may be able to help them get the necessary authorization.
Again, you’re under no legal obligation to do so, but it’s possible to sponsor a prospective employee for lawful permanent residence (a green card). Alternatively, you can help them get a non-immigrant work visa covering a broad range of roles, from seasonal laborers to specialized knowledge workers.
In Conclusion
It’s illegal to discriminate against a potential hire or employee based on national origin, citizenship, or immigration status. Although it’s your duty as an employer to use the I-9 to verify a person’s work eligibility, you must be careful not to invade their right to privacy.
You must understand that it’s never appropriate to ask about citizenship. You can only ask about work eligibility, and even then, you must exercise caution so as to stay compliant and avoid legal repercussions down the line.
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