Unfair Immigration-Related Employment Practices

AuthorCharles M. Miller/Daniel Brown/Marcine Anne Seid
ProfessionFounding 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
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
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-

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