Last week I attended the Iowa State Bar Association Employment Law Seminar.  One of the more interesting discussions involved whether an employer should ask an applicant whether he or she is a U.S. citizen or authorized to work in the U.S. on the employment application.  There was some lively debate on the issue. 

The speaker on immigration law, James Benzoni of Des Moines, advised that employers should not ask the question on the employment application.  He said asking the question prior to hiring opens the employer up to possible national origin discrimination claims and that the I-9 process takes care of determining whether the employee is eligible after hiring.  He asked, "Isn’t that why we have the I-9 process?"

The Staff Selection blog has a list of questions not to ask in an interview or employment application.  The blog post (source: advises that it is acceptable to ask, "Will you be able to show proof of eligibility to work in the U.S. if hired?" 

But if I understand Benzoni’s advice correctly he would argue why even take the chance with that question.  Isn’t it presumed the applicant is able to show proof of eligibility?  Isn’t that part of why the applicant is applying for the job – because they’re eligible to work in the U.S.?

Benzoni makes a good point.  Before hiring, questions regarding whether someone is a U.S. citizen or eligible to work in the U.S. could open the employer to possible discrimination claims.  The I-9 process does flush out whether the employee is able to show proof of eligibility.

The question of citizenship and eligibility is frequently asked on employment applications so employers would be wise to review their applications and ask their employment lawyer for specific advice on the issue.