The Employment Authorization Question: Ask, But Ask Carefully

The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) (http://www.ice.gov/worksite/) continues to use worksite enforcement (such as I-9 inspections) as a tool to curb illegal immigration. Recognizing the importance of maintaining a legal workforce, most employers focus on the issue early by asking job applicants about work authorization. Asking this question on the employment application, rather during an interview, ensures that the question is asked of each applicant in the same way. It also is important to ask the question using the proper language and focus. Otherwise, the question may lead to discrimination charges and investigations by the Department of Justice’s Office of Special Counsel (OSC) or EEOC.

The question must focus on the job applicant’s ability to work legally in the United States. The question should not ask about the applicant’s immigration status or citizenship. Therefore, an employer may ask:

Are you authorized to work lawfully in the United States for [insert company name]?

 _____ Yes       _____ No

An employer should not ask questions such as “Are you a U.S. citizen or do you have a visa that allows you to work?” For most purposes, if the person is authorized to work for the employer, it does not matter whether the source of the work authorization is American citizenship, permanent residence in theUnited States, or temporary employment authorization that is independent of the employer. The point is that the job applicant states he or she is authorized to work legally in the United States for the company where the applicant is seeking a position.

Employers also should not ask on the job application or during a job interview for “proof” of work authorization such as, “Are you authorized to work lawfully in the United States (proof required)?” Evidence of work authorization is not required until after there is an accepted job offer. Indeed, the evidence is presented at the start of employment when the employer and new hire complete the Form I-9, Employment Eligibility Verification. If the employer requests evidence before an accepted job offer, the OSC may assert that the employer is prescreening job applicants based upon citizenship or immigration status. The OSC also has commented that questions referencing “proof” discourage qualified individuals from applying. According to the OSC, job applicants may not understand what proof is required until they review the Form I-9 instructions and I-9 List of Acceptable Documents. Even when the question on the job application makes clear that proof is not required until employment begins, the OSC has objected. See OSC Technical Assistance Letter (Dec. 22, 2010) (stating that the question “Can you, after employment, submit proof of your legal right to work in the United States?” may discourage qualified applicants because they do not understand that “proof” means documents on the I-9 List of Acceptable Documents). If the employer wishes to state that evidence of work authorization will be required when employment starts, it is best to reference the I-9 Form and not the term the OSC finds confusing (“proof”). For example, the employer may state as follows on its job application:

Are you authorized to work lawfully in the United States for ___________ company?

 _____ Yes  _____ No

Note: If hired, a Form I-9, Employment Eligibility Verification, must be completed at the start of employment.

It is a best practice to ask job applicants about their ability to work legally in the United States, but how an employer goes about asking is important.