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From About.com,

Are you a U.S. citizen?

Every interview I have had has asked this. Even pre-interview screening includes this question. Is it really illegal for them to ask this?

Note: Not really permissible on this site, but what would a good reply to such a question be if asked during an interview and you know that "the wrong answer" means no continuation interview?

To the people who are not in the job-search mode. The typical question asked are verbatim,

"Do you have the legal right to work in the US?" — which I believe is legal.

"Do you now or in the future require a work visa to continue to work" — which is a round-about way to ask about citizenship because non-citizens are the only ones who need the work visa.

CLARIFICATION: Since people are misunderstanding my use of CITIZEN. I am referring to any individual who has the same employment rights as a citizen as a citizen, this includes people who are PR's(green card) or citizens, or hold permanent authorization to work in the US (O-1 etc).

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picakhu
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    I would have thought it would be a pre-requisite. In the UK if an employer employs somebody who is not legal to work in the country they are opening themselves up to prosecution. Is there something similar in the US? If so I would assume that this would be required to find out if the employer needs to get a copy of the visa to prove that they are legally employing somebody. – Ardesco Jun 07 '11 at 09:25
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    The actual legal question is "Do you have the legal right to work in the U.S?" This is all they should care about most of the time, not citizenship. – luvieere Jun 07 '11 at 09:30
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    @luvieere, the common question is asked not because of the right to work. It is because they do not want to sponsor a visa in the future. They are reluctant to allow workers who have a short term visa, because of the "fear" that in the future a visa is needed. – picakhu Jun 07 '11 at 09:38
  • @Ardesco, you do not need to be a citizen to work in the U.S. Anyone with a green card, which by definition means they are NOT a citizen, can be hired. – fred Jun 07 '11 at 18:32
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    Actually, the correct legal question is **"Do you have the legal right to work in the U.S. for any employer?"** Some companies don't do H1-B, and companies are not required to. This question is a way of asking whether you're *either* a citizen *or* a permanent resident without asking which, specifically, you are. – Kyralessa Jun 08 '11 at 00:05
  • @Kyralessa, that is a valid question. That is always asked. However, sometimes, the 2nd question I stated above is also asked. Which IS a question of citizenship in disguise. – picakhu Jun 08 '11 at 00:16
  • @picakhu, no, permanent residents don't require a "work visa" to continue to work. H1-B's do. My wife was a permanent resident prior to receiving citizenship. She could work for any employer; she didn't require a special visa. – Kyralessa Jun 08 '11 at 02:26
  • Have a look at the Other Issues section on [this EEOC page](http://www.eeoc.gov/policy/docs/qanda-nationalorigin.html). – Kyralessa Jun 08 '11 at 02:31
  • @Kyralessa, I am deliberately being vague about citizenship. For all practical purposes a PR (green card holder) is a citizen. – picakhu Jun 08 '11 at 02:39
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    "Do you now or in the future require a work visa to continue to work?" is not a question about citizenship. It asks, rather, whether the individual has *either* citizenship *or* permanent residency. – Kyralessa Jun 08 '11 at 02:48
  • Yes. It is discrimination against those who have temporary visas. (Like myself). I clumped PR and Citizen as Citizen in the question if that is what is bothering you. – picakhu Jun 08 '11 at 02:54
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    No, it's not necessarilly illegal. Many jobs require security clearances that cannot be held by foreigners, and therefore aren't open to foreigners even if they have a work permit. – jwenting Jun 08 '11 at 13:31
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    @jwenting, you are absolutely correct. However, the context of the question needs to be made clear before the question is asked. Without the clarification, it is discrimination. You will find that, that question is asked whether or not it is a matter of security clearances. – picakhu Jun 08 '11 at 15:31
  • @Kyralessa, please refer to my clarification in the question. – picakhu Jun 08 '11 at 15:35
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    "When I use a word," Humpty Dumpty said, in a rather a scornful tone, "it means just what I choose it to mean--neither more nor less." – Kyralessa Jun 08 '11 at 19:04
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    Also, the H1-B program (if that's what you are, @picakhu) has specific requirements; for instance, the employer must ensure that the H1-B worker doesn't displace American workers. Many employers are not willing to sponsor H1-B's. What they're trying to ask is whether you require sponsorship or not. You can call this discrimination if you like, but it's discrimination against your legal status, not your national origin or ethnicity. A permanent resident of your same national origin or ethnicity might be hired by the same employer. – Kyralessa Jun 08 '11 at 19:12
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    Please don't use the word citizen to mean something it doesn't mean. A citizen and a permanent resident are not the same thing, and neither of them is the same as a temporary resident. – Kyralessa Jun 08 '11 at 19:13
  • @Kyralessa, I do not wish to disclose my status. I am allowed to work for ANY employer for a limited amount of time and that is all I will reveal. But I am NOT a H1-B. Could you elaborate on why a question like the 2nd one I stated above is valid? Namely one that discriminates by placing in one category permanently authorized people {US Citizens, PR's, O-1 visa holders, EB-1 visa holders etc.} and the rest who may not have a visa or have a temporary visa {like H1-B, H2-A, H2-B, F1, J1, etc}. – picakhu Jun 08 '11 at 19:19
  • @picakhu, any kind of discrimination can be forbidden by law, or not. Discrimination on the basis of race, ethnicity, or national origin is forbidden by law. Discrimination on the basis of visa status is not. It could be, if such a law were passed, but it doesn't happen to be. There are certain responsibilities a company has when hiring a temporary-visa worker that don't apply when hiring a citizen or permanent resident. For this reason, not every company wants to hire a temporary-visa worker. It's legal for a company to determine whether or not you're a temporary-visa worker. – Kyralessa Jun 08 '11 at 22:32
  • @Kyralessa, do you have any evidence that shows that? The comment by Nicholas Knight below his answer that starts with "Form I-9 ..." has evidence that employers are not allowed to do precisely what you claim they can. The quote reproduced here is "No. You cannot refuse to hire persons solely because their employment authorization is temporary." – picakhu Jun 08 '11 at 22:42
  • @picakhu, you need to see the [complete I-9 handbook](http://www.uscis.gov/files/form/m-274.pdf). If you do, you'll find that you're mixing two different categories. Permanent residency cards have expiration dates...as do driver's licenses and passports. It doesn't mean the card or license or passport is revoked after X years; it means you have to renew. The I-9 booklet is cautioning against rejecting a worker's authorization documents merely because they have an expiration date. – Kyralessa Jun 09 '11 at 03:10
  • @Kyralessa, maybe I really am misreading it, but as far as I know an expiration date for a card is different from "employment authorization being temporary" – picakhu Jun 09 '11 at 03:16
  • @picakhu " I do not wish to disclose my status. " in that case, expect hiring managers to think you're an illegal or at least trying to get a job without the required status or work permits. And as hiring something like that is a crime with severe penalties, they shouldn't hire you. – jwenting Jun 09 '11 at 03:47
  • @jwenting, On this website I do not, if you have a job to offer me, I will be more than willing to discuss my status. – picakhu Jun 09 '11 at 04:35
  • The comment section is not meant for extended discussion, please take the discussion to chat if you want to continue it. Don't continue it here. – Mad Scientist Jun 09 '11 at 05:58

2 Answers2

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It is illegal to discriminate based on national origin, which a question about citizenship is an obvious potential proxy for. That said, Form I-9 is used to determine the eligibility of a person to work in the US, and allows a person to assert US citizenship. This is really the only context in which this question should ever be asked. Also, for companies large enough to have an HR department, Form I-9 generally ought not go anywhere but HR -- the people actually making the hiring decision should not be asking the question or seeing the answer.

Note that permanent residents are not US citizens, but are allowed to remain indefinitely and work without restriction (sans some government-related jobs), so "Are you a U.S. citizen?" is NOT an appropriate proxy for "Will we have to sponsor a visa?".

The question "Will we have to sponsor a visa?" is probably itself inadvisable. Form I-9 even specifically states:

ANTI-DISCRIMINATION NOTICE: It is illegal to discriminate against work-authorized individuals. Employers CANNOT specify which documents they will accept from an employee. The refusal to hire an individual because the documents have a future expiration date may also constitute illegal discrimination.

Finally, it's not that specific questions are "illegal" per se, but that they create an perception -- accurate or not -- that discrimination is occurring, and can be used as strong evidence of such in lawsuits and regulatory actions.

UCIS also has an Employer Handbook regarding Form I-9 that may be interesting.

Nicholas Knight
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  • So, anyway to answer the question? Lying=bad reputation, Not Lying=no interview. Note: the only options in the pre-interview screening are yes/no. – picakhu Jun 07 '11 at 11:24
  • @picakhu: I guess I didn't say this explicitly, but you only have two options. The truth, or an admonishment that they shouldn't ask that question. Lying is just going to cause more problems. Report the incident to the interviewer's superiors, HR department (most HR managers would go apoplectic if they heard about this), or general counsel. If you don't get anywhere, the EEOC. Not hiring someone who is legally eligible to work because they're not a citizen is illegal. – Nicholas Knight Jun 07 '11 at 11:39
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    @picakhu - I'd try answering the question which they should have asked: "Are you a citizen?" - "I have a legal right to work. (nod)" – ChrisW Jun 07 '11 at 12:06
  • @Nicholas Knight, The pre-interview question is required for about 90% of applications that are done through online forms. It is also a required question. So, I need to pick a yes or no to the question. I have never gotten a call when I picked a yes, I need a visa, but I have gotten interview calls when I picked a no (but they ask the same question again during the phone interview) – picakhu Jun 07 '11 at 12:18
  • @picakhu: Now you're talking about "do you need a visa?". This is totally different. "Do you need a visa?" is exactly equivalent to "Do you have a legal right to work in the US?". "No" means you already have that right -- either you already have a visa, or you have some other status that allows you to work in the US -- "Yes" means you do _not_ already have the right to work in the US. Look carefully at which question is being asked. "Do you need a visa?" is not "Do you already have a visa?", it's "Do you need to get one?", and is legal. Employers are not required to sponsor you for a visa. – Nicholas Knight Jun 07 '11 at 12:34
  • @Nicholas Knight, I have a temporary work visa. But the question is if I need one now or in the future... So, my answer has to be a yes.. I would once my present one expires. – picakhu Jun 07 '11 at 12:36
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    @picakhu: Remember that there are multiple ways of working legally in the US, such as being a citizen, being a permanent resident, having an employer-specific work visa, having an unrestricted work visa, some classes of refugees and non-deportable persons, etc.. Employers don't have to _help you_ get a legal right to work in the US, but if you already _have_ a general right to work in the US, they cannot decline to hire you because you're not a citizen. – Nicholas Knight Jun 07 '11 at 12:39
  • @Nicholas, that is what I thought. However, if employers *REFUSE* to hire you, then what difference does it make? Basically for some positions, it says that they do not hire people with temporary visas. – picakhu Jun 07 '11 at 12:41
  • @picakhu: I think you may be misinterpreting what is being asked, but I can't say for sure without seeing the _exact_ text. CIS is pretty clear on this point, any employment authorization document qualifies, regardless of future expiration date. If they're really doing this, they're opening themselves up to a lawsuit. The only exception is some public service/government work, and certain private sector jobs related to government work, which are allowed to have additional requirements in some cases. – Nicholas Knight Jun 07 '11 at 12:45
  • @Nicholas, From 3M, "Will you now or in the future require sponsorship for employment visa status (e.g. H1-B status)? DISCLAIMER: If you receive an offer from 3M and accept the offer, before you are placed on the payroll, you will be requested to verify that you are authorized to work in the US." The --or in the future-- part is what I believe they are not allowed to ask. – picakhu Jun 07 '11 at 12:48
  • @picakhu: Call an immigration attorney (or their HR department, 3M's might give you a straight answer, especially if you bring up the USCIS guidance on temporary authorizations) if you want to be sure, but I'm almost certain what they're asking is fine, and that _your_ answer is probably "no". They're explicitly asking about _sponsorship_. **You** already have a general work authorization, right? You just have to request periodic renewal/extension that may not necessarily be granted. You're not asking 3M to do anything at all. H1-B etc. is very different from normal temporary work visas. – Nicholas Knight Jun 07 '11 at 12:57
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    @Nicholas, From personal experience of mine and the others I know who have applied, everyone(who I know) has been rejected if they reveal they are not *permanently* authorized to work in the US. Some have made it into final round, been offered the job, then rejected on this basis. – picakhu Jun 07 '11 at 13:01
  • @Nicholas Knight, I should also probably thank you for the wonderful advice. It seems like I am doing an awful lot of complaining. – picakhu Jun 07 '11 at 13:03
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    @picakhu: You should really contact an attorney and/or file EEOC complaints, then. These companies are likely violating the law. I have never seen any indication that it's permitted to reject someone whose authorization is temporary, and all my specific research turns up attorneys and government agencies telling employers they _can't_. – Nicholas Knight Jun 07 '11 at 13:06
  • @Nicholas, do you think you can provide a source(link) that shows that companies are not allowed to ask if a person has a temporary or permanent authorization? – picakhu Jun 07 '11 at 13:14
  • @picakhu: Form I-9 (link in answer) has a big bold warning across the top of page 4, and the USCIS Employer Handbook (link also in answer) has a couple mentions, but the most specific is at the very start of page 44, "No. You cannot refuse to hire persons solely because their employment authorization is temporary." – Nicholas Knight Jun 07 '11 at 13:23
  • To back up ChrisW, if I'm asked if I'm a citizen my response would be "I think you just asked me an illegal question [smile]. But to answer it: yes, I'm authorized to work here." – DJClayworth Jun 07 '11 at 14:22
  • @DJClayworth, over the phone the [smile] is quite redundant. – picakhu Jun 07 '11 at 14:29
  • There are no illegal questions. There are questions which, if asked, are evidence of illegal discrimination should you fail to hire the person the question is asked of. (Or, alternatively, if you fail to hire all qualified applicants. Hiring somebody because they're Jewish or not hiring somebody because they're Jewish are equally illegal.) – David Thornley Jun 08 '11 at 02:43
  • @David, what then is the use of asking a question like the 2nd one I mentioned in the question? If it serves no purpose then many companies should remove the questions from their standard pre-evaluation questions. – picakhu Jun 08 '11 at 03:44
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    if the company does work which requires US citizenship (like many jobs for the military which require security clearances that non-citizens can't hold) it's only natural they don't want non-citizens to pass the selection process. And as many companies hold or want to hold military contracts (even secondary, supplying a company that supplies the military can require this) many companies are wary of non-citizens. – jwenting Jun 08 '11 at 13:35
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In the US Employment is considered At Will. Employers have the right to choose who they hire. It is not illegal to ask a question. It is not Illegal for you to decline to answer a question. Asking certian questions opens your company up for a complaint to the EEOC. The employer may have to pay a penalty and perhaps damages to you but they will not be forced to provide you with employment.

Chad
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  • What is unfair? – Chad Jun 07 '11 at 18:02
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    In addition to the lack of solid references, there are a couple of misleading points here. For instance, employment rules vary state to state. Most states allow more restrictive contracts (which indeed many unions negotiate) which can have more restrictive rules for when an employee can be hired or fired without consequence. – Russell Steen Jun 07 '11 at 18:47
  • Until hired Union rules do not apply to a candidate. The union rules are included in the first reference. I Did update the answer to include a reference i had originally intended to include as well. – Chad Jun 07 '11 at 19:02
  • Does At Will employment really apply to every state though? – Kit Sunde Jun 07 '11 at 23:06
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    Warning: Non-lawyer here. Lots, perhaps most, of US states have at-will employment, but I don't know that all do. Nor is it completely at-will, as there are illegal reasons for refusing to hire somebody, or for denying them promotion, or terminating them. Moreover, there are potential costs for terminating somebody's employment without good cause. It's complicated. – David Thornley Jun 08 '11 at 02:39
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    @Chad: Quite the contrary, collective bargaining agreements frequently _do_ have quite a lot to say about the hiring process, though it can't enable discrimination based on suspect classifications. – Nicholas Knight Jun 08 '11 at 02:54
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    @Kit @David: At-will is the common-law presumption in the US court system, but can be overridden by contract _and_ most states have various public policy exceptions, including some that stop not far short of effectively eliminating the presumption, or at least creating a significantly altered presumption. Chad's answer is flawed IMO, but his Wikipedia link (on At Will) is highly instructive on the subject (read with the usual caution applicable Wikipedia, of course). – Nicholas Knight Jun 08 '11 at 02:58
  • I would argue Nicholas that while it may be "Not far short of" it is in fact short of. Yes there are rights. However those rights are for recompense not for actual employment. The courts can issue injuctions and orders however failure to comply results in monetary damages. These damages are generally so severe as to effectively protect the worker, but that is not the same as providing employment. I really think that most of the down votes are not for the quality of the answer so much as the content. – Chad Jun 09 '11 at 15:49