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Beware the perils of immigration questions and new hires

In the current, highly charged atmosphere regarding immigration, employers are walking a thinner tightrope than ever when it comes to interviewing new people for jobs.

On one hand, you want to have as little trouble with Immigration and Customs Enforcement (ICE) as possible. On the other hand, you have to be certain that you don't go overboard and accidentally act in a way that discriminates against any potential employees.

So, what's the right way and the wrong way to ask questions about someone's citizenship when you are interviewing a candidate for a job?

Phrasing Counts

Sometimes, the difference between a fair question and an illegal one is all in the phrasing. For example, you can't legally ask a job applicant, "Are you a citizen of the United States?" because citizenship isn't actually a requirement to obtain work. (There are a few exceptions for employers with government contracts, but the vast majority of employers need to be cautious.)

On the other hand, rephrasing the question to focus around what you really need to know is perfectly legal. Then, the questions might sound like, "Are you legally permitted to be employed in the United States?"

Similarly, you need to be careful that any other questions you add regarding an individual's background or ethnic origin serve the legitimate needs of the business and aren't unnecessarily intrusive or "fishing." For example, stick with questions like, "What languages are you fluent in?" not, "Is English your native language?"

Equality Matters

Who you ask questions is just as important as how you ask those questions. You cannot target certain job applicants for questioning and not others.

For example, if you only ask your dark-skinned and dark-haired applicants about their eligibility to work in the United States and not the blond-haired, blue-eyed applicants next to them, that's overt discrimination and racial profiling. In other words, it's illegal.

Pass the message to your managers and make sure that whoever does the hiring for your business is aware of the need to balance compliance with immigration law against their employee's (and potential employee's) rights. It's far easier to avoid an employment discrimination lawsuit than it is to defend one.

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