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November 07, 2018
Parsons Behle & Latimer Legal Briefings


Q
: Most of our positions require a U.S. Department of Defense (DOD) security clearance. To get a security clearance, the employee must be a U.S. citizen. Is it legal for us to require applicants to note on our employment application whether they are U.S. citizens?

A: Generally, the Immigration and Nationality Act (“INA”) prohibits you from asking whether an applicant is a citizen prior to making an offer of employment. However, the INA does permit such an inquiry if citizenship status is required for compliance with a Federal regulation or contract. 

Q: Our company would like to run background checks on applicants for certain positions. Is that okay, or do we have to run a background check for every job position in the company?

A: Federal law does not prohibit you from limiting background checks to certain positions, provided you consistently run the checks based on job requirements and not discriminatorily on the basis of a federally-protected class such as race, age, national origin, religion or sex. 

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