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How To Ask Job Applicants About Immigration Status

Job interview questions are a legal minefield for employers. What can you ask? What can't you ask? It does not help that consultants, authors and even state and federal enforcement officials give differing information.

A good client just asked how he can comply with immigration laws without appearing to discriminate on the basis of national origin. This is an excellent question.

As you are probably aware, the United States Immigration and Naturalization Service requires that employers retain completed I-9 immigration forms for all employees. The Oregon state agency responsible for employment and workplace issues, the Bureau of Labor & Industries (BOLI), stated that employers can ask applicants any question on the I-9 form.

Following the non-binding BOLI advice may be dangerous. The I-9 form asks employees to check whether they are a citizen of the United States, a lawful permanent resident or an alien authorized to work. Requiring employees to fill out a federal form after they have been hired is fine. Asking applicants specific citizenship information before a hiring decision is dangerous.

What is a conscientious employer to do? You need to know whether an applicant is legally eligible to work in the United States. That is what you should ask. You might phrase the question:

- Are you legally eligible to work in the United States?

If the answer is "yes" and the applicant is hired, then they will confirm their answer by completing an I-9 form and supplying the required identification. If not, then you can look at other applicants.

I hope this information is helpful. Remember, we are here to help you with your employment and business law questions.

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