Immigration seems always to be in the news these days. Increasingly, immigration status and employment intersect to accompany prime real estate on the country’s many newspapers’ front pages. In fact, earlier this year, a workplace raid by Immigration and Customs Enforcement in Mississippi drew headlines virtually everywhere.
Whether you own a business or work in human resources, you likely want to keep ICE away from your jobsite. Hiring only individuals who have legal authorization to work in the United States is often an effective way to do so. Still, asking about an applicant’s citizenship status may land your organization in a legal quagmire.
The Immigration Reform and Control Act
In 1986, President Reagan signed the Immigration Reform and Control Act. While the law has broad provisions that address immigration, it also prevents employers from knowingly hiring unauthorized workers. Further, the IRCA requires that employers verify the identity and work authorization of everyone they hire. They do so by completing and retaining an I-9 form.
Generally, verifying someone’s work eligibility is something your organization can do only after hiring an individual. After all, the employee only has to have work authorization when he or she begins working. Therefore, you usually cannot ask about a prospective worker’s citizenship or immigration status during the interview process. You also cannot typically favor a U.S. citizen over other types of workers, such as green card holders or others who have authorization to work in the country.
While you likely cannot ask potential employees about their immigration status, you can inform them that your organization intends to comply with the IRCA and other applicable employment laws. The Equal Employment Opportunity Commission recommends using precise language, though. You should also provide every applicant with notice.
If you fail to comply with IRCA, your organization faces a variety of potential civil and criminal penalties. Applicants and employees may also file suit if your company violates anti-discrimination provisions. By understanding when and how you can inquire about work authorization, you better position your organization to avoid legal pitfalls.