Under existing law, employers are required to verify the identities and employment eligibility of employees hired after November 6, 1986, by completing the Form I-9. In addition, employers cannot discriminate against workers during the Form I-9 process. In support of this directive, the antidiscrimination provision of the Immigration and Nationality Act (INA) prohibits certain unfair immigration-related employment practices which play out during the employment eligibility verification, or Form I-9, process. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is part of the Civil Rights Division of the U.S. Department of Justice (DOJ) and is tasked with enforcing these provisions. On August 15, 2016, the OSC published in the Federal Register a proposed rule, “Standards and Procedures for the Enforcement of the Immigration and Nationality Act,” which would effectively increase the degree of scrutiny to which employers would be subject during the employment eligibility verification process.  

The INA’s antidiscrimination provision has evolved over the past 30 years, gradually imposing increasing requirements with which employers must be familiar. The provision first came about in 1986 pursuant to the Immigration Reform and Control Act, was expanded in 1990 with the addition of a subsection prohibiting certain unfair documentary practices during the Form I-9 process, and then further in 1996, pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act, with an amendment making unfair documentary practices unlawful only if done “for the purpose or with the intent of discriminating against an individual in violation of” provisions prohibiting discrimination based on national origin or citizenship status set forth in 8 U.S.C. section 1324b(a)(1)(A) and (B). As explained by the DOJ, the revisions currently proposed seek to “incorporate the intent requirement contained in the amended statute, and also change the regulatory provisions regarding the Special Counsel’s investigation of unfair immigration-related employment practices.” In practical terms, the proposed change of terminology from "documentation abuses" to "unfair documentary practices" allows the DOJ to take action against employers where it previously would not have done so. While “abuse” suggested that employers intended to harm employees, “unfair” does not. Employers would do well to take this change into consideration when developing their immigration policies.

The proposed rule includes revisions to the jurisdictional, procedural, investigative, and adjudicative phases of the claim process. Of primary interest are the changes proposed to several key definitions:

• The definition of the term “charge” would eliminate information related to an alien’s immigration status that is not required in determining whether the Special Counsel has jurisdiction to investigate an alleged unfair immigration-related employment practice.
• The definition of the term “charging party” would replace the word “individual” with “injured party,” would replace “private entity” with “organization,” and would clarify the scope of who may file charges. The new definition would also make clear that that the U.S. Department of Homeland Security may file charges alleging ongoing as well as past acts of unlawful employment discrimination.
• The definition of the term “citizenship status” would be amended such that “[a]n individual’s citizenship status connotes more than simply whether the individual is or is not a U.S. citizen, and encompasses as well a non-U.S. citizen’s immigration status.”
• The definition of “discriminate” would be expanded so that “discrimination means the act of intentionally treating an individual differently, regardless of the explanation for the discrimination, and regardless of whether it is because of animus or hostility.”
• The proposed rule would clarify that “the act of intentionally treating an individual differently based on national origin or citizenship status is sufficient to demonstrate discriminatory intent regardless of the explanation for the discrimination, and regardless of whether it is based on animus or hostility.”
• “Hiring” would be defined as “all conduct and acts during the entire recruitment, selection, and onboarding process undertaken to make an individual an employee” to make clear that conduct during the entire hiring process, and not solely the employer’s final hiring decision, may constitute an unfair immigration-related employment practice.
• The proposed rule would codify OSC’s longstanding interpretation that an employer’s request that an individual present specific documents for completion of Form I-9 violates the unfair immigration-related employment practice provision of section 1324b(a)(6) when the request was made because of national origin or citizenship status.
• The proposed rule would define the phrase “recruitment and referral for a fee” to “make clear that conduct during the entire process of recruitment or referral for a fee, and not solely the employer’s final recruitment or referral decision, may constitute an unfair immigration-related employment practice.”

The cumulative effect of the changes put forward in the proposed rule would be to increase scrutiny on employers during the employment eligibility verification process. As a result, employers will want to exercise a correspondingly appropriate level of care in the development and administration of their Form I-9 internal policies and programs. Comments on the proposed rule will be accepted through October 14, 2016.