DOJ Proposes Changes to the Immigration and Nationality Act’s Discrimination Provisions

By Nancy Hammer Sep 2, 2016

On August 15, the Department of Justice (DOJ) Civil Rights Division published a proposal to revise regulations implementing the section of the Immigration and Nationality Act (INA) that deals with unfair immigration-related employment practices. The proposed rule can be found HERE.

SHRM and its strategic affiliate the Council for Global Immigration (CFGI) are looking closely at these proposed rule changes in order to provide DOJ with feedback. The anti-discrimination provisions of the INA, enforced by the Office of Special Counsel for Immigration-Related Unfair Employment Practices in the Civil Rights Division, prohibit employers from discriminating against employees and applicants based on national origin or citizenship status. Employers are specifically prohibited from discriminating by asking for specific documents or demanding more documents than what the law requires from employees in order to prove identity and work eligibility.

The proposed rule seeks to make several revisions to the way in which discrimination charges can be filed, the processing of charges, and the time frames for filing and pursuing a complaint. The proposal also changes the definitions of certain key statutory terms, including lowering the standard required to demonstrate intent to discriminate.

The College and University Professional Association for Human Resources joined SHRM and CFGI's letter requesting an extension of the comment period, currently set for a mere 30 days ending September 14. The request for extension highlights the fact that Congress passed the statutory provisions in 1986. In the 20 years since, stakeholders have relied on existing interpretations, making a 30-day comment period insufficient time to understand the history, gather input from our members and fully understand the challenges these changes may present to stakeholders. 


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