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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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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 7 '11 at 9:25
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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 7 '11 at 9:30
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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 7 '11 at 9:38
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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 8 '11 at 0:05
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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 8 '11 at 2:48
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2 Answers

up vote 18 down vote accepted

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.

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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 7 '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 7 '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 7 '11 at 12:06
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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 7 '11 at 12:39
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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 8 '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.

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Thanks for that information. That is very unfair.. – picakhu Jun 7 '11 at 17:53
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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 7 '11 at 18:47
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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 8 '11 at 2:39
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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 8 '11 at 2:54
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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 8 '11 at 2:58
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