Employment Law Daily Proposed INA reg updates would add intent requirement to find document requests discriminatory
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Tuesday, August 16, 2016

Proposed INA reg updates would add intent requirement to find document requests discriminatory

By Pamela Wolf, J.D. The DOJ’s Civil Rights Division (CRD) proposes to revise its regulations implementing part of the Immigration and Nationality Act (INA) pertaining to unfair immigration-related employment practices. Among other things, the revisions would conform the regulations to the statutory text as amended in 1996 to include an intent requirement in the prohibition against unfair documentary practices during the employment eligibility verification process, according to the notice of proposed rulemaking that the CRD published in the Federal Register on August 15. Statutory amendments. The CRD noted that the INA’s antidiscrimination provision, Section 274B, codified at 8 U.S.C. 1324b, was enacted by Congress as part of the Immigration Reform and Control Act of 1986 to bar certain unfair immigration-related employment practices. Congress provided for the appointment of a Special Counsel for Immigration-Related Unfair Employment Practices to enforce this provision. Congress has amended 8 U.S.C. 1324b several times, including on November 29, 1990, by Section 535 of the Immigration Act of 1990, to add a new subsection (a)(6) prohibiting certain unfair documentary practices during the employment eligibility verification process. On September 30, 1996, by Section 421 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress again amended that provision by providing that unfair documentary practices were unlawful only if done "for the purpose or with the intent of discriminating against an individual in violation of" 8 U.S.C. 1324b(a)(1). Regulations lag behind amendments. However, the set of regulations implementing Section 1324b (28 CFR Part 44) has not been updated to reflect the statutory text as amended by the IIRIRA, according to the Civil Rights Division. The proposed regulatory revisions apply to the Special Counsel’s investigations and to cases adjudicated under Section 1324b before the DOJ’s Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer (OCAHO). The proposed revisions to 28 CFR Part 44 would incorporate the intent requirement set out in the amended statute. The proposed revisions would also change the regulatory provisions pertaining to the Special Counsel’s investigation of unfair immigration-related employment practices. Specifically, the proposed revisions update the ways in which charges of discrimination may be filed, clarify the procedures for processing of such charges, and conform the regulations to the statutory text to clarify the timeframes within which the Special Counsel may file a complaint with OCAHO, the division said. The proposal would also simplify the definitions of certain statutory terms and define additional statutory terms to clarify the full extent of the prohibitions against unfair immigration-related employment practices and to eliminate ambiguities in the regulatory text; codify the Special Counsel’s existing authority to seek and ensure the preservation of evidence during investigations of alleged unfair immigration-related employment practices; replace references to the former Immigration and Naturalization Service with references to the Department of Homeland Security where applicable; and reflect the change in name of the office within the division that enforces the antidiscrimination provision, from the Office of Special Counsel for Immigration-Related Unfair Employment Practices to the Immigrant and Employee Rights Section. Comments. Comments on the proposed regulatory revisions must be submitted on or before 30 days after publication in the Federal Register. Instructions for submitting comments are provided in the CRD’s notice of proposed rulemaking.

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