Unfair Immigration-Related Employment Practices

• Author: Charles M. Miller/Daniel Brown/Marcine Anne Seid
• Profession: Founding partner of the Miller Law Offices, Studio City, California/Partner in Fragomen, Del Rey, Bernsen & Loewy LLP's Washington, D.C./Principal attorney of the Seid Law Group, Palo Alto, California
• Pages: 103-114

103

5

5.01 INTRODUCTION

When Congress passed the Immigration Reform and Control Act of 1986, creating the

employment verication and I-9 compliance requirements for employers, it also estab-

lished a set of antidiscrimination provisions in § 274B of the Immigration and Nationality

Act (INA)1 to prohibit a number of unfair immigration- related employment practices.

The Immigrant and Employee Rights Section (IER) is the ofce in the Department of

Justice (DOJ)’s Civil Rights Division responsible for receiving and investigating charges of

immigration- related discrimination and, when appropriate, ling complaints with the des-

ignated administrative law judges within the Ofce of the Chief Administrative Hearing

Ofcer (OCAHO), the same ofce that also hears cases involving I-9 violations led by

Immigration and Customs Enforcement (ICE).2 The president, with the consent of the Sen-

ate, appoints the Special Counsel for Immigration-Related Unfair Employment Practices

within the DOJ.3 The Special Counsel is responsible for the investigation of discrimination

charges and issuance of complaints.4

The IER has expanded its enforcement activities signicantly in recent years. Employ-

ers must ensure that antidiscrimination policies and training are an integral part of their

overall I-9 compliance program. In addition to a more aggressive enforcement posture, the

IER recently published a nal rule making important revisions to the immigration- related

discrimination regulations that took effect on January 18, 2017.5 The wide- ranging revi-

sions made by the nal rule reect the ofce’s name change (the IER was formerly the

Ofce of Special Counsel for Immigration-Related Unfair Employment Practices, or OSC)

in addition to clarifying and enhancing the ofce’s investigative authorities and the time

frames under which the IER may pursue allegations of discrimination against an employer.

The nal rule also makes important changes to the regulatory denitions of discrimination

1. 8 U.S.C. § 1324b.

2. Immigration and Nationality Act of 1952 (INA) § 274B(c),8 U.S.C. § 1324b(c).

3. INA § 274B(C)(1); 8 U.S.C. § 1324b(C)(1).

4. Id.

5. 81 Fed. Reg. 91768 (Dec. 19, 2016).

Unfair Immigration-

Related

Employment

Practices