Last year, December 19, 2016, the Department of Justice (“DOJ”) issued the final revised rule on Section 274B of the Immigration and Nationality Act (“INA”). Section 274B addressed unfair immigration practices in employment settings. Modifications to Section 274B reverberate for businesses throughout the United States. These revised rules could drastically impact the way businesses operate, especially in how they select and hire employees.
Department of Justice and Immigration and Nationality Act
The Department of Justice is the primary federal law enforcement agency. It oversees the Federal Bureau of Investigation, the Drug Enforcement Agency, and the Alcohol, Tobacco, Firearms, and Explosives Agency. It is also responsible for interpreting and enforcing the INA. In this capacity, the Office of Special Counsel for Unfair Immigration-Related Employment Practices oversees and enforces the INA, and they released the revised rule on Section 274B of the INA.
The DOJ closely cooperates with the Department of Homeland Security (“DHS”) which is responsible for securing the borders and enforcing immigration rules. Together, the DOJ and DHS interpret and enforce immigration-related laws.
The INA was passed in 1968. It radically altered the immigration system that had been in place since 1921. The old system, the National Origins Formula, was scrapped in favor of the current system of immigration visa preference categories. The National Origins Formula severely restricted immigration from Asia and Africa in favor of emigrants from Western, Northern, and Eastern European countries. The INA also lifted immigration quotas on immediate relatives of U.S. citizens. The INA was passed in the wake of the Civil Rights Movement and introduced the modern system of “visa categories” (i.e. H1-B, H-2A, H-2B, and the other employment categories). The INA also lifted immigration restrictions on immediate relatives of citizens.
Section 274B is a part of the INA. It prohibits unfair immigration-related practices, particularly, discriminating against an applicant or employee based on their immigration status or country of origin.
Revised Section 274B Rule
The revised 274B drastically increases the DOJ’s capacity to investigate allegations of unfair immigration-related practices. Specifically, employers are effectively barred from inquiring about a worker or applicants immigration status. The rule does not drastically alter employer policies, for instance by imposing new duties, however, it does impact hiring, promotion, and retention policies.
The rule dramatically expands the definition of “discrimination” under the INA. The revised rule scrapped the old burden that required the DOJ to prove that the employer intended to discriminate, instead, the DOJ merely needs to substantiate any instance of disparate impact, regardless of the reason or justification for the disparate treatment.
The revised rule also extended the amount of time the DOJ has to file a discrimination claim from 180 days to 5 years. Finally, employees and applicants for jobs no longer need to prove that they suffered economic harm to bring a claim or for the DOJ to bring a claim on their behalf. Under the old rule, an employee could only recover the amount of economic harm they suffered, for example, losing shifts or a raise. Now, under the revised rule, the applicant need only prove that employer engaged in discriminatory behavior.
Impact on Business Operations
Navigating the rule requires businesses to conform their operations to the arcane rules enumerated in Section 274B. For instance:
- A business owner or manager who asks a worker to provide documentation of immigration status, assuming a worker fails to provide a USCIS A-Number, could be found liable of Section 274B violation and be subject to a discrimination claim if the employer failed to ask for documentation to clarify the missing information.
- In another common scenario, the employer notes that an applicant provided they are a lawful resident but not a citizen, the employer may not ask the applicant to submit their green card or other immigration documentation.
Both of the above scenarios are subjects of frequent DOJ enforcement and the DOJ has indicated that it will continue to investigate and enforce these scenarios.
Furthermore, the new rule enables the DOJ to investigate on its own. That means the DOJ does not need to rely on employee or applicant complaints to begin investigating a business. The DOJ can rely on statistical inferences drawn from use of the E-Verify system. The DOJ can also rely on inferences drawn from public disclosures of information, for example, hiring practices or compensation packages.
The revised rules place higher burdens on employers without creating new duties. The new rules expand the power of the DOJ to investigate and prosecute discrimination claims. It also substantially expands the definition of discrimination to include disparate impact and dropped the requirement that the applicant suffer a measurable economic harm. In short, the revised 274B rules mean that employers are on notice that the DOJ is planning on taking a more active role in curbing unfair employment-related immigration practices.