It is generally illegal to directly ask a job candidate if they are a U.S. citizen during an interview. While it might seem like the most straightforward way to determine if an individual is legally able to work for a company, directly inquiring about citizenship is considered discriminatory and is prohibited.
Employers must ensure they do not engage in discriminatory hiring practices based on national origin or citizenship status. The primary concern for an employer is whether a candidate is legally authorized to work in the United States, not their specific citizenship status.
Why Asking About Citizenship is Prohibited
Direct questions about a candidate's U.S. citizenship can lead to discrimination. Federal anti-discrimination laws prohibit employers from making hiring decisions based on protected characteristics, which include national origin. Asking about citizenship specifically, rather than general work authorization, can be seen as an attempt to screen out applicants based on their national origin.
What Employers Can Ask Instead
Instead of inquiring about citizenship, employers should focus their questions on whether the candidate is legally authorized to work in the United States. This distinction is crucial for compliance with employment laws.
Here's a breakdown of legal and illegal approaches during an interview:
| Illegal Interview Questions | Legal & Appropriate Interview Questions |
|---|---|
| "Are you a U.S. citizen?" | "Are you legally authorized to work in the United States?" |
| "Where were you born?" | "Are you able to provide proof of your legal right to work in the U.S. upon employment?" (This is typically asked post-offer and involves the I-9 form verification process, not during the initial interview.) |
| "What is your nationality?" | "Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)?" (This question is typically permissible after a conditional offer of employment, to determine long-term work authorization needs, but should be asked consistently of all candidates.) |
Post-Offer Verification: The I-9 Form
Once a job offer has been extended and accepted, employers are legally required to verify the employment eligibility and identity of all new hires, regardless of their citizenship. This process is completed through the Form I-9, Employment Eligibility Verification.
- When to ask: The I-9 form should only be completed after a job offer has been made and accepted.
- What it proves: Candidates must present specific documents (e.g., U.S. passport, permanent resident card, employment authorization document) that establish both their identity and their authorization to work in the U.S.
- Consistency is key: Employers must apply the I-9 verification process uniformly to all new employees to avoid any claims of discrimination.
By adhering to these guidelines, employers can ensure they are compliant with employment laws while also determining a candidate's eligibility to work.
