Is it legal in the U.S. to ask about a prospective employee’s US immigration status when hiring?
No, it is generally illegal for employers to ask about a prospective employee’s U.S. immigration status when hiring. Employers cannot question the prospective employee’s US immigration status in the ‘help wanted’ advertisement offering the job to the public.
Under federal law, employers must verify that an employee is authorized to work in the U.S. The will go through the Form I-9 E-Verify process. This happens AFTER a job offer acceptance. However, they cannot ask for specific documentation. Nor can they inquire about an applicant’s citizenship or immigration status before making a job offer. Inquiries about immigration status could potentially lead to discrimination based on national origin. Federal law prohibits this. It’s important for employers to familiarize themselves with these laws and regulations to ensure they are complying with them.
Which U.S. laws regulate immigration status inquiries during the employee hiring process?
The main federal law that governs these questions when hiring is the Immigration Reform and Control Act (IRCA) of 1986. This law prohibits employers from discriminating against individuals on the basis of national origin or citizenship status. Under IRCA, employers must verify the identity and employment eligibility of all employees. This stands true regardless of their citizenship status, using the Form I-9 process.
Employers can only request specific documents for the Form I-9 process. They may not request additional documentation beyond legal requirements. Employers cannot discriminate against employees or job applicants based on their citizenship status or national origin.
There may be state and local laws that provide additional protections for employees. This can be related to questions about their immigration status during the hiring process. Employers should familiarize themselves with the laws in their specific jurisdiction.
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