A few weeks ago, the Department of Justice (DOJ) published for comment a proposed rule that would amend the regulatory authority provided to the Agency’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) to conduct investigations into discriminatory employment practices under the Immigration and Nationality Act (“INA”). The three primary impacts of the proposed rule would be to:

  1. Eliminate the intent requirement that has traditionally been required to make a finding that an employer has engaged in discriminatory employment practices under the INA;
  2. Penalize “unfair documentary practices” rather than “documentation abuses”, marking a similar shift to broader, more encompassing language; AND
  3. Rebranding and changing the name of the OSC to the Immigrant and Employee Rights Section;

Other amended language in the proposed rule will impact procedural aspects of how charges of discrimination can be filed and will clarify the procedures for processing charges.

Background about the OSC:

The OSC has traditionally been responsible for enforcing the INA’s prohibition on national origin or citizenship abuse in hiring, recruitment, referral for a fee, or the discharge of an employee, as well as the prohibition on employer retaliation or intimidation of those who file charges or assert rights under the INA. Additionally, the OSC is also responsible for enforcing the prohibition on “document abuse”, which refers to situations where the employer, in the I-9 verification process, asks for more or different documents than normally required, or refuses to accept documents which are genuine on their face.

The OSC has been quite active of late and has recently announced settlements with several large companies after conducting lengthy investigations into their alleged violations of the INA.

Employer Insights:

As those familiar with the I-9 process are already aware, employers are already subject to liability upon audit by the Department of Homeland Security (“DHS”) for substantive and procedural errors in the I-9 process, and by the OSC for document abuse. Of note, the existing regulations require an “intent to discriminate” concurrently with employer refusal to accept documents that are genuine on their face in the I-9 verification process to constitute document abuse. The proposed regulations would make this intent finding unnecessary for the OSC to conclude an employer has engaged in document abuse during the I-9 process, and would essentially create a broader standard akin to strict liability for a document abuse finding.

The amended regulation would certainly expand what is considered to be unfair documentary practices by implicating practices that have other business or unrelated goals and purposes. Employers will need to evaluate their human resources practices carefully in light of this new rule to minimize liability and look at discriminatory impact instead of the intent behind or purpose of their practices.

The DOJ will accept comments on the proposed rule through September 14, 2016, and the rule does not take effect until final publication. We will keep you updated on further developments with regard to this proposed rule.