CUPA-HR Submits Comments on Proposed Regulation on Unfair Immigration-Related Employment Practices

On October 14, CUPA-HR and five other trade associations submitted comments to the Department of Justice (DOJ) Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) on a proposed rule revising Section 274B of the Immigration and Nationality Act (INA) as it pertains to unfair immigration-related employment practices. This action follows on the heels of a request for extension that we filed in August to allow impacted stakeholders the necessary time to evaluate this extensive proposal.

The changes that OSC proposed are significant and will subject employers to greater scrutiny during the employment eligibility verification process and increase DOJ’s capacity to investigate allegations of unfair immigration-related practices. The comments express our and other stakeholders’ concerns that the proposal grants the OSC investigative powers that go “far beyond the boundaries of Section 274B in a way that ignores the statutory context, runs contrary to Congress’s intent, and is not necessary to the effective administration of the immigration-related unfair employment practices provisions of the INA.”

Specifically, the proposed rule would eliminate the “statutory requirement that OSC show that the employer intended to discriminate based on citizenship status” by redefining intentional discrimination to include any instance of disparate treatment “regardless of the explanation for the differential treatment.” Additionally, OSC would expand the maximum period of time for filing an unfair immigration-related claim from 180 days to five years, disregarding “Congress’s determination that claims should be advanced within 180 days — subject to certain statutory exceptions — in order to ensure that relevant evidence is preserved, key witnesses are available and a reliable determination may be reached.”

Although DOJ has concluded that the proposed rule is not a “significant regulatory action,” we make it clear in our comments that this will have a major effect on employers. We believe the proposal has many flaws, including violating Congress’s will; therefore, we believe that the regulation should be withdrawn.

Stay tuned for further updates on the issue in the days to come.