Questions pertaining to a candidate's citizenship status are prohibited, but hiring managers must verify candidates are authorized to work in the United States. Given that it is illegal for employers to hire those not authorized to work in the county, and to ask discriminatory interview questions, hiring managers must toe the line between ensuring job eligibility without breaching any employee protections.
Discriminatory questions lead to legal trouble and fines. “Are you a U.S. citizen?” and “Were you born in the U.S.?” are prohibited as they lead to biased decisions based on citizenship status. Individuals can be authorized to work in the U.S. without holding citizenship. Asking “Are you legally allowed to work in the U.S.?” identifies ineligible applicants while upholding non-discriminatory practices.
After moving a candidate through the hiring process, written offer letters should include the following clause pertaining to employment verification and Form I-9 completion: This offer is contingent on verification of your right to work in the United States, as demonstrated by your completion of the Form I-9 upon hire and your submission of acceptable documentation (as noted on the Form I-9) verifying your identity and work authorization within three days of starting employment.
Employers must validate and retain Form I-9 for all workers hired in the U.S., regardless of citizenship status. Employees must attest they are authorized to work in the U.S. and provide acceptable documents authenticating their identity and employment eligibility. Form I-9 requirements include
- completion within three days an employee’s start date,
- a compliant document review process,
- retention policy for the form and IDs presented, and
- reverification in the case of name changes or certain document expirations.
Failing to meet compliance and reporting requirements in the recruiting and hiring process is an avoidable misstep. For help with your Form I-9 and employment verification, contact Bukaty Companies HR Consulting & Training team.
