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Background Investigations Federal Investigations Notices

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Notice No . 03-01

Subject: : Citizenship and Birth Verification During the Hiring Process

Date: October 30, 2002

This notice is to reinforce the Federal personnel community's role in verifying birth and/or citizenship status as it relates to Federal employment.

An individual who is not a citizen or national of the United States may not compete for or be appointed to a position in the competitive service.Therefore, applications may not be accepted from non-citizens (see 5 CFR 7, 5 CFR 338 and 8 U.S.C. 1408).If there is a question about an applicant's citizenship (e.g., the applicant failed to answer this question on the application form), the application may be accepted and processed.If the individual is subsequently referred on a certificate, his/her name should be annotated with instructions to verify citizenship before appointment.Citizenship must be verified before appointment (5 CFR 338).

The Federal Government gives strong priority to hiring United States citizens and nationals; however, non-citizens may be hired in certain circumstances.Agencies considering non-citizens for Federal positions in the competitive service must follow usual selection procedures and also meet the requirements of all three of the following:

  • Immigration law;
  • Appropriations Act ban on paying certain non-citizens; and
  • Executive Order restriction on appointing non-citizens in the competitive service.

Agencies considering non-citizens for Federal employment in the excepted service and Senior Executive Service (SES) must meet the first two above requirements.In addition, agencies are responsible for applying any citizenship requirements that may appear in their individual agency's authorization and appropriation laws.

Immigration Law:

Since the passage of the Immigration Reform Act of 1986, employers have been responsible for ensuring that the people they hire are eligible to work in the United States.Employers and all new employees are required to complete the Immigration and Naturalization Service (INS) Form I-9, and employers (appointing officials) must check employees' documents to verify employment eligibility.The Immigration and Nationality Act of 1990 added other requirements.One of those requirements is that employers may not discriminate against employees by requesting more or different documents than are required.The Immigration and Nationality Act, as modified, provides at Title 8, Unites States Code (U.S.C.) 1324 (a) that it is unlawful for a person or other entity to employ an unauthorized alien.In 1996, Public Law 104-208 added a statement that the term "entity" includes an entity in any branch of the Federal Government.

Regulations that implement immigration laws are published in Title 8 of the Code of Federal Regulations (CFR).According to 8 CFR section 274a, U.S. employers may only hire an individual who is:

  • A citizen (either by birth or naturalization);
  • Lawfully admitted for permanent residence;
  • Lawfully admitted for temporary residence and granted an employment authorization document by the Immigration and Naturalization Service;
  • An alien admitted or paroled into the United States as a refugee and granted an employment authorization document;
  • An alien granted asylum and granted an employment authorization document;
  • A fianc�, fianc�e, child, or parent of an alien who was admitted under certain conditions;
  • An alien who is authorized employment with a specific employer incident to status (such as on-campus part-time employment of a non-immigrant student); or
  • An alien who meets other requirements that are listed in the regulations.

For more detailed information about employer and employee responsibilities under United States immigration law, contact the Immigration and Naturalization Service (INS).

Appropriations Act Ban on Paying Certain Non-Citizens:

For every year since 1939 Congress has placed language in annual appropriations laws to prevent the use of appropriated funds in the continental United States to pay Federal employees unless they are United States citizens or meet one of several exceptions.Each agency is responsible for applying the terms of this law.No authority is given to the Office of Personnel Management to regulate, enforce, or grant exceptions to the ban.The current ban appeared in the Treasury and General Government Appropriations Act, 2002, Public Law 107-67 (November 21, 2001).

Executive Order Restriction on Appointing Non-Citizens to the Competitive Service:

Executive Order 11935 (September 2, 1976) restricts the employment of non-citizens in competitive service positions covered by Title 5 of the U.S. Code.This applies to all agencies with competitive service positions, any place in the world.The Executive Order amended Civil Service Rule VII to include the following section:

  • 5 CFR 7 General Provisions

(a) No person shall be admitted to competitive examination unless such person is a citizen or national of the United States.

(b) No person shall be given any appointment in the competitive service unless such person is a citizen or national of the United States.

(c) OPM may, as an exception to this rule and to the extent permitted by law, authorize the appointment of aliens to positions in the competitive service when necessary to promote the efficiency of the service in specific cases or for temporary appointments.

Citizenship Verification as it Relates to Executive Order 12968:

In accordance with Executive Order 12968 - Access to Classified Information, the Office of Personnel Management's Investigations Service does, in certain situations only, automatically conduct the search of INS to verify citizenship status for individuals born outside the U.S.This also includes the subject's spouse and/or cohabitant and immediate family members listed on the SF 86 that were born outside the U.S.The INS search is automatically conducted when the investigative case papers show that the individual will require access to Top Secret (TS) or Sensitive Compartmented Information (SCI).For all other levels of investigation, the requesting agency must ask for this search to be conducted.The letter code of "H" for subject and "I" for spouse must be recorded in block "B" on page 1 of the investigative form (SF 86, 85P, 85) for the search to be conducted.

Birth Corroboration:

For all initial investigations the employing agency is responsible for corroborating the subject's date and place of birth through a check of appropriate documentation.For example, the subject may present a birth certificate to the employing agency.A check of the Bureau of Vital Statistics records should be conducted when any discrepancy is found to exist.If you would like OPM to resolve discrepancies, or if your agency is not in a position to conduct the birth corroboration, we can provide this service.We obtain birth corroboration through a Bureau of Vital Statistics (BVS) search in the state of the subject's birth.An agency may request a BVS search by placing an "L" in Block B (Extra Coverage) on the investigative form. OPM does not automatically schedule a BVS search for any investigation; the requesting agency must ask for it to be done.There is an additional fee of $15 for the BVS search on SAC/NAC/NACI/NACLC/ANACI products.

Please direct any questions you have relating to citizenship and Federal employment to OPM's Employment Service at 202 606-8097.Questions relating to OPM's investigations as they relate to citizenship verification may be directed to your agency's Security Appraisal Officer at 202 606-1042.For specific information regarding the coding on the investigative forms (SF 86, 85P, 85) you may contact the Program Services Office at 724 794-5612.

Richard A. Whitford
Acting Associate Director for Employment
Kathy Dillaman, Acting Associate Directorfor Investigations

Inquiries: OPM-ES, 202-606-8097; IS-OTAD, 202-606-1042

Code: 732,736

Distribution: SOI's and SON's

Letter expires: When Superseded

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