Revised regulations implementing Section 274B of Immigration and Nationality Act (INA), prohibiting certain unfair immigration-related employment practices, will become effective on January 18, 2017, the Department of Justice has announced. Of particular import to employers are the revisions to 28 CFR Part 44 on the employment eligibility verification process. Employers should ensure their policies and practices are in compliance with the revised regulations.
Since 1990, employers have been prohibited from requesting more or different documents or rejecting valid documents during the employment verification process. In 1996, with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Congress made clear that such unfair documentary practices were unlawful if done only “for the purpose or with the intent of discriminating” on the basis of citizenship status or national origin. Now, 21 years later, the Department has update the regulations to reflect the IIRIRA amendments.
With the newly amended regulations, it is clear that in the I-9 process, including the E-Verify process, an employer can be guilty of prohibited discrimination on the basis of citizenship status or national origin even if it is simply trying to be helpful. The regulations specify that the prohibited discrimination must be intentional, but that ill will or animus is not required. In other words, while an employer’s motives might be benign or even if the employer is simply trying to help its employees, disparate treatment is prohibited.
Moreover, employers should not ask for specific documents based upon their understanding of the employee‘s immigration status. The comments to the regulations state that “[r]equesting 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 List of Acceptable Documents and explain to them that they may present one List A document or one List B documents and one List C document.” With this, the Department appears to be establishing a best practice or even a safe harbor.
The anti-discrimination provisions of the INA are enforced by the Civil Rights Division of the Department of Justice through the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). The amended regulations also renamed the OSC as the “Immigrant and Employee Rights Section.” As of this date, the individual who will head the Section under the Trump administration is yet to be selected.