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I-9 E-Verify Immigration Compliance

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  1. DOJ Proposes Revisions to OSC Through Rulemaking

    By Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

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    The Department of Justice (DOJ) has issued a Notice of Proposed Rulemaking for the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Comments are being accepted for 30 days.

    The most significant proposed revision is to incorporate into a regulation the OSC’s definition of the intent requirement to discriminate as set forth in U.S. v. Life Generations Healthcare LLC, 11 OCAHO no. 1227 (2014), where OCAHO stated the discriminatory intent inquiry under 8 U.S.C § 1324b (a)(b) involves “ask[ing] the question whether the outcome would have been different if the groups [U.S. citizens versus non-U.S. citizens] had been reversed.” Thus, just the request for more or different documents because of an individual’s citizenship status or national origin constitutes intentional discrimination even if the employee was completely unaware of the prohibition against discrimination in the I-9 process.

    An interesting revision is a change in the name of the agency to Immigrant and Employee Rights Section. It would remain in the Civil Rights Division of DOJ. This change is understandable given the current lengthy name for the agency.

    Another potentially significant revision is replacement of the term “documentation abuses” with the term “unfair documentary practices”. Previously, to prove document abuse, one had to prove intent. But “unfair documentary practices” suggests no intent is needed to prove something is unfair.

    Other revisions include:


    • Definition of the term “citizenship status” to include refugees and asylees, which is consistent with OSC’s current practice;
    • Clarification of the term “discrimination” to be consistent with 8 U.S.C. 1324b - 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;
    • Definition of the statutory phrase – “more or different documents than required under such section to be consisted of OCAHO case law;
    • Definition of the term “charge” to make it broader as to what is acceptable;
    • Define the term “hire”;
    • Define how the Special Counsel’s office counts full-time and part-time employees to determine jurisdiction of national origin discrimination allegations; and
    • Clarification that Special Counsel is not bound by the 90-day statutory time limit on filing a complaint that is applicable to individuals filing actions.


    Overall, a few of these proposed changes are significant while others amount to housekeeping. Since the period for comment is open, if you feel strongly about one or more of the revisions, I invite you to submit your comments.
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