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 verication 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 ofce 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 Ofce of the Chief Administrative Hearing
Ofcer (OCAHO), the same ofce 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 signicantly 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 reect the ofce’s name change (the IER was formerly the
Ofce of Special Counsel for Immigration-Related Unfair Employment Practices, or OSC)
in addition to clarifying and enhancing the ofce’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 denitions 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
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