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DOJ Final Rule Changes Office of Special Counsel for Immigration-Related Unfair Employment Practices to ‘Immigrant and Employee Rights Section’; IER Publishes New Guidance


The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been renamed the Immigrant and Employee Rights Section (IER). IER enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), which prohibits certain types of employment discrimination based on citizenship, immigration status, and national origin. IER’s mission and functions remain the same as OSC’s. A related final rule also made other clarifications.

The Department of Justice said in a statement announcing a webinar series to educate the public about the recent changes that IER’s revised regulations, effective January 18, 2017, conform the regulations to the text of the INA’s anti-discrimination provision, simplify and add definitions of statutory terms, update and clarify the procedures for filing and processing charges of discrimination, ensure effective investigations of unfair immigration-related employment practices, reflect developments in nondiscrimination case law, reflect changes in existing practices such as electronic filing of charges, and reflect the office’s name change from OSC to IER.

Some commenters on the rule objected to the proposed revisions for not requiring that an employer act with ill will or animus to violate the statute (8 USC § 1324b). The DOJ said its position remains that ill will or animus is not required to commit discrimination under the statute. The final rule explains the DOJ’s position in more detail “to address any confusion about the meaning of discrimination and to reiterate that discriminatory intent is required in order to violate the statute.” The final rule notes that the statute makes clear that any discrimination must be “because of” a protected characteristic; for example, citizenship status or national origin. However, the final rule states that an employer cannot justify discriminatory conduct “simply by claiming a lack of ill will or animus.” Explicit discrimination is disparate treatment even absent a malevolent motive, the final rule notes; an otherwise discriminatory employment action cannot be rendered lawful because the employer’s motives were benign.

The final rule also notes that a number of the commenters’ examples would not violate the statute as long as the employers were not treating employees differently because of a protected characteristic. In one example, an employer allows an employee’s friend or family member to help translate the Form I-9 for the employee. Such an act would not be considered discrimination, the final rule states, unless the employer allowed only certain employees to have a friend or family member assist in completing the I-9 based on citizenship status or national origin.

The final rule states that many of the examples provided by commenters characterize the act of asking for specific documents from workers during the employment eligibility verification process as “assistance.” The DOJ said it disagrees with this characterization: “Requesting specific employment eligibility verification documents from employees unnecessarily limits their choice of documentation. An employer that is interested in helping workers through the employment eligibility verification process should provide all workers with the Lists of Acceptable Documents [from the I-9 form] and explain to them that they may present one List A document or one List B document and one List C document.”

IER also issued guidance for employers on January 18 on avoiding discrimination against citizens of the Federated States of Micronesia (FSM), the Republic of the Marshall Islands (RMI), and the Republic of Palau. As the guidance discusses, citizens of the FSM, the RMI, and Palau (collectively referred to as the Freely Associated States, or FAS) are eligible under the Compacts of Free Association between the United States and the FAS for admission to the United States as nonimmigrants, and are eligible to live and work indefinitely in the United States. FAS citizens are eligible for a variety of documentation that can satisfy the Form I-9

requirements, IER notes, and employers should allow FAS citizens to choose which documents to present from the I-9 Lists of Acceptable Documents to establish their identity and work authorization.

IER is offering information about its revised regulations in its monthly employer and worker webinars and in stand-alone presentations. Topics include the changes to the regulations, how these changes affect the public, and resources for those who would like more information about IER and its regulations. IER also published “Employment Rights and Resources for Refugees and Asylees” on January 18, which discusses several rights that asylees and refugees have in the workplace and how to contact relevant federal agencies if they believe their rights are being violated.

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Ivener & Fullmer LLP, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.

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