You’ve got a job opening at your company, and you’ve just had a phone call to set up an interview with a candidate who seems perfect for the job. The only issue is that she speaks with an accent, and all her previous jobs were located in foreign countries.
Is it okay to ask her if she has a work visa? Should you find out whether she’s authorized to work in the U.S. before you offer her the job? If so, how would you go about obtaining that information?
Here’s what you need to know.
When You Can Ask
The Immigration Reform and Control Act requires all employees to provide proof to employers that they can legally work in the U.S. Employers are required to verify the eligibility status of all employees, even those they know are U.S. citizens. It is against the law to knowingly hire someone who is not authorized to work in the United States.
Even so, the Immigration Reform and Control Act generally forbids you from asking a person to prove his or her citizenship during a job interview or at any time before you offer employment.
Verifying a person’s eligibility is something you do only after you’ve hired the candidate. You can, however, inform the candidate that you plan on verifying the employment status of any potential new hire. In fact, the Equal Employment Opportunity Commission recommends adding the following statement to your employment applications to ensure compliance:
“In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification document form upon hire.”
How You Should Ask
The primary way of asking about citizenship status is to have the employee fill out IRS Form I-9, “Employment Eligibility Verification,” no later than his or her first day of work for pay.
The I-9 has three sections. The employee completes the first section, and the employer completes the other two no later than the third business day since your new hire’s first day of working for pay.
The worker must also present documents to you that prove his or her identity and employment authorization. There are three lists of documents: List A, List B and List C. Generally, employees have to present any one item from List A; alternatively, they can present a combination of one item from List B and one item from List C. These lists can be found by clicking here.
When Is It Over the Line?
Treating employees differently is a form of discrimination that can land you in a lot of trouble. Although it’s your duty to use the I-9 to verify a person’s work eligibility, it is not your right to invade the privacy of others.
Generally, for example, you cannot ask for proof of citizenship beyond what the I-9 requires, and you cannot dictate which forms of identification employees choose to show you from the I-9 lists. You also cannot refuse to hire someone because his or her visa will expire in the future.
Not only can employees and candidates sue you for discrimination, but the federal government can also force you to pay penalty fees and back wages, as well as to rehire or hire workers. You may also have to submit to monitoring and anti-discrimination training. Additionally, it’s illegal for you to retaliate against employees that file discrimination charges with or cooperate in an investigation by the Equal Employment Opportunity Commission or the Department of Justice.
It is illegal to discriminate against a job candidate or employee based on citizenship status, even if you don’t do it intentionally. By understanding when and how you can ask about citizenship, you can make sure you’re doing your part to stay compliant and avoid legal repercussions down the line.