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By Bruce Buchanan, Sebelist Buchanan Law
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; andClarification 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.
By: Bruce Buchanan, Sebelist Buchanan Law
A U.S. District Court Judge for the District of Columbia, who invalidated USCIS’s 17-month Optional Practical Training (OPT) extension rule for STEM recipients, but stayed the decision for six months, in Washington Alliance of Technology Workers vs. U.S. Department of Homeland Security, has granted the Department of Homeland Security’s (DHS) request for an additional 90 days of the stay.
In the Judge’s initial decision, she found DHS did not have good cause to publish the OPT extension regulation in 2008 as an emergency rule; thus, it was not exempt from the notice and comment requirement. But, the Judge stayed her decision until February 12, 2016.
One of the reasons that the Judge granted the additional 90 days for the stay was due to the unprecedented number of comments in response to the notice-and-comment rulemaking. Specifically, there were 50,500 comments filed. DHS argued that the invalidation of the 17-month STEM extension, because it could not properly evaluate the 50,500 comments, would create a hardship on participating workers and employers. The Judge agreed and thus extended the stay.
By Bruce Buchanan
On June 8, 2015, the Department of Homeland Security (DHS) proposed changes to E-Verify, with the most significant being utilization of E-Verify when an employer re-verifies an employee through the I-9 form. Recently, the American Immigration Lawyers Association (AILA) submitted its comments in opposition to the revisions. AILA’s basic premise is there is no statutory authority to support these revisions.
Section 403(3)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which authorized E-Verify states: “The person or other entity shall make an inquiry…using the confirmation system to seek confirmation of the identity and employment eligibility of an individual, by not later than the end of three working days after the date of hiring.” Therefore, the statute permits E-Verify employers to verify the employment authorization of potential employees only in the context of the “hiring.”
If the proposed revisions were implemented, employers would not receive legal protections - such as a rebuttable presumption that the employer did not knowingly hiring an undocumented worker if authorized by E-Verify - provided to employers for acting in good faith reliance on E-Verify results. This is because the statute only provides this protection in the hiring context related to the employee’s identity and employment authority.
AILA asserted the proposed changes to E-Verify would significantly change the requirements and burdens placed on E-Verify employers; thus, it constitutes a legislative rule under Section 553 of the Administrative Procedure Act (APA), which requires notice and comment rulemaking before they can be lawfully implemented.
I will note that a Federal Judge recently found DHS failed to utilize this same type of notice and comment rulemaking in implementing the 17-month OPT STEM extension and voided the extension. Thus, DHS may be making a similar mistake in this case without notice and comment rulemaking.
AILA also asserted rulemaking was required to the extent that these changes would be applied to federal contractors. The Federal Acquisition Regulation (FAR) does not allow a federal contractor to “perform additional employment verificationusing E-Verify for any employee whose employment eligibility was previously verified by the contractor through” E-Verify. DHS cannot unilaterally impose E-Verify changes on federal contractors by revising the Memorandum of Understanding (MOU) because the E-Verify obligations of federal contractors are already set forth in the FAR. Thus, an amendment, with the full notice and comment process, would be required to impose these new burdens.
Furthermore, AILA argued DHS’s proposal did not provide any substantive policy justification in its supporting statement for the change. This is despite the fact that the proposal would impose substantial new burdens and obligations on E-Verify employers. The failure to provide a policy justification deprives the public of the opportunity to meaningfully assess the costs and benefits of the proposed changes.
Finally, AILA argued, under this proposed revision, E-Verify employers who follow the proposed MOU’s three-day reverification procedure rather than the strict expiration date rule found in the I-9 reverification regulation could unintentionally find themselves in violation of INA §274A(a)(2), and for federal contractors, this could lead to debarment. The proposal does not contain a safe harbor provision from a knowingly continuing to employ violation.
I will be following these E-Verify proposed revisions by DHS and update you on any new developments.