You have 10 open roles and 100 applicants, and you want to know now who can actually work. But in the eyes of the law, curiosity can look a lot like discrimination. To protect your company, you need to know exactly where the “No-Go” zone begins.

The Pre-Offer “No-Go” Zone

Until you’ve extended a formal offer, your curiosity is legally capped. Federal guidance (under the INA) is a “two-question only” territory.

You CAN ask:

  1. “Are you legally authorized to work in the United States?”
  2. “Will you now or in the future require sponsorship for employment visa status?”

You CANNOT ask:

  • “Are you a U.S. citizen?”
  • “What is your visa type?” (H-1B, L-1, etc.)
  • “Can I see your Green Card or Passport?”
  • “Where were you born?”

Digging into citizenship or requesting documents too early is considered a discriminatory hurdle. Unless you fall under a narrow exception, it’s a fast track to a DOJ audit.

The Narrow Exception

There are limited situations when you can ask about citizenship upfront. This only applies if a law, executive order, or government contract requires it. Examples include:

  • Federal jobs: specific roles requiring U.S. citizenship.
  • Export controls: positions dealing with ITAR/EAR (defense and high-tech) where access is restricted by nationality.
  • Security clearances: roles that require a “Secret” or “Top Secret” stamp from the government.

E-Verify is for Post-Offer Only

E-Verify is a web-based system operated by the USCIS that electronically compares a new hire’s Form I-9 information with DHS and SSA records to confirm work authorization. It’s free and voluntary for most employers, although mandatory for certain federal contractors and by some states as a condition of business licensing or employment practices. Employers must create an account and sign a Memorandum of Understanding (MOU) with DHS and SSA before using E Verify.

Here’s the E-Verify flow:

  • Employee accepts an offer
  • Employee completes Form I-9
  • Employer enters I-9 data into E Verify
  • System checks the data against SSA and DHS records
  • Employer receives results

What Can Background Screening Companies Do?

Background screening companies must follow the same pre‑offer rules as employers, meaning they cannot check, request, or verify citizenship, visa type, or immigration status.

After a conditional offer, they can help verify work authorization only by reviewing the documents the employee provides for Form I‑9 and running E‑Verify, providing they are registered as an E‑Verify Employer Agent and the employer is enrolled. (Employers must still sign the MOU with the DHS and remain legally liable for any compliance slip-ups.) ‑

 

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.