On August 15, 2016, the Civil Rights Division of the U.S. Department of Justice published proposed rules implementing a section of the Immigration and Nationality Act (INA) concerning unfair immigration-related employment practices. Proposed changes include:
- Conforming the regulations to the implementing statute, 8 U.S.C. 1326b(a)(1), to make clear that unfair documentary practices is unlawful if there is an intent to discriminate against an individual in violation of the INA.
- Clarifying that intentional discrimination can occur without animus or hostility. For instance, "intentional discrimination" may occur when an employer requests an individual to present more or different documents than required under 8 U.S.C. 1324(b) even though the employer believed it was helping that person complete the Form I-9 quicker.
- Explaining that compliance will be evaluated during all of the employer's efforts to verify an individual's employment eligibility, including the Form I-9 verification and the E-Verify process.
- Making clear that an employer's conduct throughout the hiring process, and not only during the employer's final hiring decision, may constitute unlawful immigration-related employment discrimination.
- Confirming that requesting an individual present specific documents from the Form I-9 Lists of Acceptable Documents for employment eligibility verification purposes violates 8 U.S.C. 1324b(a)(6) where that request is made because of the individual's national origin or citizenship status.
- Explaining that the Equal Employment Opportunity Commission (EEOC) will assert jurisdiction over an entity charged with national origin discrimination if the employer has at least 15 or more employees for each working day in each of 20 or more calendar weeks during the current or preceding calendar year. However, if the employer does not meet the EEOC's threshold for coverage, the Special Counsel for Immigration-Related Unfair Employment Practices (Special Counsel) will investigate the charge if the entity employed more than three (3) employees on the date of the alleged discrimination.
- Clarifying that the Special Counsel is not bound by the 90-day statutory time limit on filing a complaint that is applicable to individuals filing private actions. Equitable limitations apply to the Special Counsel's filing of a complaint, though a five-year statute of limitations apply for bringing actions to impose civil penalties.
Comments concerning the proposed rules are due on or before September 14, 2016 and may be submitted by one of the following methods:
- Federal eRulemaking Portal: http://www.regulations.gov
- Mail: 950 Pennsylvania Avenue NW-NYA, Suite 9000, Washington, DC 20530
- Hand Delivery/Courier: 1425 New York Avenue, Suite 9000, Washington DC 20005