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I asked a question over on the Workplace Stack Exchange after being asked to bring either a passport, birth certificate, or naturalization document with me to a job interview. From what I gathered from the answers, the employer either needs to verify my identity/citizenship to comply with regulations for the facility, or HR is expecting that I fill out an I9 to avoid wasting time on those that can't complete the form acceptably.

The interview is not until next week so I do not know the answer, yet, but I am interested in the possible legal question. From what I have read, it is illegal for an employer to request an I9 form be filled out prior to extending an employment offer. I am not a lawyer, so I am unsure as to whether or not this is true, or enforced. Would this scenario in fact be illegal?

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The issue is that discrimination based upon citizenship status between people who are legally allowed to work is not allowed, and an I-9 reveals the applicant's citizenship status.

There is certainly nothing wrong with requiring the employee to have the I-9 filled out in advance to reduce delays in the event that an offer is extended. A requirement to fill it out in advance also de facto screens people who aren't legally allowed to work, while not screening anyone else out. The problem would be revealing the contents of the I-9 to the prospective employer before a hiring decision is made, which would make it possible to impermissibly discriminate in a way that is easily avoided.

This said, while the best practice is to deny the employer information about citizenship status among legally employable applicants, knowing information that an employer is not allowed to discriminate about, while making it possible to discriminate does not prove a discrimination case, and having the information, while unwise, is not necessarily illegal as far as I know.

For example, it isn't terribly uncommon to have a job offer where everyone who applies and is allowed to work legally gets the job as a matter of course on a first come, first hired basis for low level jobs (e.g. movie extra in a crowd).

Similarly, discrimination based upon race, sex and age are all prohibited, but despite the fact that those characteristics can be determined in an instant on sight, the law does not forbid someone from interviewing candidates in person before hiring them.

  • "discrimination based upon citizenship status between people who are legally allowed to work is not allowed" I dont think this is always true. I believe positions needing a security clearance are limited to citizens only. – Matt Dec 9 '17 at 13:48
  • @Matt Someone who is a non-citizen is not legally allowed to work in a position needing a security clearance, and there are other circumstances where a non-citizen's visa may legally allow work of some types but not others. But, even in cases where only citizens can work, the proof provided with an I-9 (e.g. a birth certificate v. naturalization papers) would make possible discrimination between citizens whose citizenship arises in different ways, which is also not permitted. – ohwilleke Dec 9 '17 at 19:38
  • @Matt We agree that there are jobs that non-citizens may not legally do. But, this is fully captured by the statement that "discrimination based upon citizenship status between people who are legally allowed to work is not allowed", so this statement is not overly general or contrary to the quoted language. The language I used was merely subtle. – ohwilleke Dec 9 '17 at 19:48
  • Okay, but thats not what you said. "people who are not legally allowed to work" is a different set of people than "people not legally allowed to work at this job". – Matt Dec 9 '17 at 20:20

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