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Can you ask about an applicant’s citizenship?

If you have ever recruited for a position, you know how difficult it can be to find qualified candidates. In fact, you may look through hundreds of applications before you find a skilled applicant. When you do, you want to be certain your new candidate is employable. 

The Immigration Reform and Control Act of 1986 prevents U.S. employers from knowingly hiring workers who lack the legal authorization to work in the country. To confirm work eligibility, you must complete and retain I-9 forms for everyone you hire. Can you ask about citizenship status on an employment application, though? 

Citizenship status discrimination 

Federal law prohibits most employers from discriminating against applicants and employees based on their citizenship status. As such, you generally cannot ask about citizenship during the hiring process. Of course, in section one of the I-9, individuals must describe their employment eligibility by checking a box indicating they are a citizen, permanent resident or someone who has another type of work authorization. 

Employment complications 

Even if you have no problem hiring workers who are not U.S. citizens, your customers may object. Still, reassigning your employees to keep your clients happy may violate the anti-discrimination provisions in the IRCA. Also, asking certain employees to provide specific documentation to prove their employment eligibility could be problematic. As long as your workers comply with the instructions of the I-9, you should not specify which documents your employees may provide. Becoming familiar with official guidelines for completing the I-9 is not a bad idea. 

Exceptions to the Rule 

While most employers may not ask about citizenship status, some exceptions exist. If your organization has a legally valid reason for the inquiry, you are probably safe to do so. For example, certain federal contractors, grant recipients and security providers may only be able to employ U.S. citizens. 

How you treat applicants and employees matters. If you want to avoid legal trouble, though, you should probably not ask workers about their citizenship status. With a bit of diligence, you can likely minimize your chances of facing a citizenship discrimination charge.

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