A new regulation published by the Justice Department on the enforcement of the anti-discrimination provisions of the Immigration and Nationality Act (INA) took effect Wednesday.

The anti-discrimination provision of the INA, section 274B, was enacted in 1986 as part of the Immigration Reform and Control Act  and is intended to prohibit unfair immigration-related employment practices on the basis of citizenship status and national origin. Congress created the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) within the Justice Department to investigate violations and enforce discrimination prohibitions.

The new rule simplifies definitions of ambiguous statutory terms to provide greater clarity and eliminate obscurities; updates the procedures for filing, processing, investigating, and deciding INA-based discrimination claims; and renames the OSC and grants authority to the agency to act on its own behalf in some cases.

Key changes:

  • The rule broadens the definitions of “discrimination” and “hiring.” The regulation defines discrimination as “the act of intentionally treating an individual differently from other individuals because of national origin or citizenship status, regardless of the explanation for such differential treatment, and regardless of whether such treatment is because of animus or hostility.”The rule clarifies that an employer’s intent to discriminate must be based on national origin or citizenship status.

    The rule also broadens the definition of hiring to include all conduct and acts during the entire recruitment, selection and on-boarding process. Individuals protected by the anti-discrimination provision include citizens or nationals of the U.S., lawful permanent residents, aliens admitted for temporary residence, refugees and asylees.
  • The rule updates filing procedures. Under the new rule, individuals seeking to submit a discrimination claim must do so within 180 days of the alleged discrimination, with an additional 45 days to submit information if OSC requests it.

    OSC has discretion to accept charges filed after the 180-day time limit under special circumstances. The regulation gives the agency authority to require employers to provide access to extensive information, including Forms I-9 (Employment Eligibility Verification).
  • The regulation renames OSC the “Immigrant and Employee Rights Section.” The office will continue to be part of the Justice Department’s Civil Rights Division. The renamed office is controlled by a special counsel for immigration-related unfair employment practices. The special counsel is a government official appointed by the president for a four-year term, by and with the consent of the Senate, who reports directly to the assistant attorney general in the Justice Department’s Civil Rights Division.

    The special counsel has the ability to investigate charges of immigration-related unfair employment practices and conduct litigation in federal court to compel orders and subpoenas. The final regulation also gives  special counsel the authority to act on their own behalf if they have a reason to believe a business is engaged in discriminating immigration-related employment practices.

BAL Analysis: The new regulation will likely increase the risk that employers will be subject to immigration-related discrimination claims and give rise to increased liability. Those with questions about the changes or how to remain in compliance should contact their BAL attorney.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.

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