The Department of Justice (DOJ) published a final rule in the Federal Register on December 19, 2016, regarding its enforcement of the provisions of the Immigration and Nationality Act (INA) concerning unfair immigration-related employment practices. The Immigration Reform and Control Act of 1986 (IRCA) contains an anti-discrimination provision to prohibit certain unfair immigration-related employment practices. One prohibited employment practice includes requesting more or different documents or rejecting valid documents during the Form I-9 process. However, in 1996, Congress amended the details concerning this practice to make it clear that it was unlawful if done “for the purpose or with the intent of discriminating against an individual.” The DOJ, through the present final rule that went into effect on January 18, 2017, has finally updated the regulations to reflect the Congressional changes made in 1996. In addition, the final rule addresses:
- Changes to how charges of discrimination are filed and processed.
- Clarifications made to definitions of certain statutory terms.
- New definitions of statutory terms.
- Codification of Special Counsel’s existing authority to seek and ensure the preservation of evidence during investigations.
- Changing the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) to the Immigrant and Employee Rights Section.