Pre-Employment Inquiries and Citizenship

Most employers should not ask whether or not a job applicant is a United States citizen before making an offer of employment. The INA requires employers to verify the identity and employment eligibility of all employees hired after November 6, 1986, by completing the Employment Eligibility Verification (I-9) Form, and reviewing documents showing the employee's identity and employment authorization. Other state and federal laws require some employers to use E-Verify. Federal law prohibits employers from rejecting valid documents or insisting on additional documents beyond what is required for the Form I-9 or E-Verify processes, based on an employee's citizenship status or national origin. For example, an employer cannot require only those who the employer perceives as "foreign" to produce specific documents, such as Permanent Resident ("green") cards or Employment Authorization Documents. Employees are allowed to choose which documents to show for employment eligibility verification from the Form I-9 Lists of Acceptable Documents. Employers should accept any unexpired document from the Lists of Acceptable Documents so long as the document appears reasonably genuine on its face and relates to the employee.

Federal law also prohibits employers from conducting the Form I-9 and E-Verify processes before the employee has accepted an offer of employment. Applicants may be informed of these requirements in the pre-employment setting by adding the following statement on the employment application:

"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 form upon hire."

E-Verify employers must use the system consistently and without regard to the citizenship, immigration status, or national origin of employees. They must also notify every employee who receives a Tentative Nonconfirmation (TNC) and should not make assumptions about employment authorization based on the TNC issuance. If an employee contests a TNC, employers cannot fire, suspend, modify a work schedule, delay job placement or otherwise take any adverse action against the employee just because the employee received a TNC.

As stated above, the INA prohibits employment discrimination on the basis of national origin by smaller employers (with four to 14 employees). The INA prohibits retaliation against individuals for asserting their rights under the INA, or for filing a charge or assisting in an investigation or proceeding under the INA. Discrimination charges under the INA are processed by the Immigrant and Employee Rights Section (IER) in the Department of Justice's Civil Rights Division. For more information, contact IER at the numbers below (9:00 am-5:00 pm ET, Monday-Friday) or visit IER's website. Calls can be anonymous and in any language:

1-800-255-7688 (employees/applicants)
1-800-255-8155 (employers)
1-800-237-2515 and 202-616-5525 (TTY for employees/applicants and employers) www.justice.gov/ier