By: Bruce Buchanan, Sebelist Buchanan Law

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Effective January 18, 2017, U.S. Department of Justice’s (DOJ) Civil Rights Division has implemented a final rule to update regulations concerning enforcement of employment-related anti-discrimination provisions under the “unfair immigration-related employment practices” section of the Immigration and Nationality Act (INA).

One of the most interesting changes is the Office of Special Counsel for Immigration-Related Unfair Employment Practices, usually referred to as Office of Special Counsel or OSC, is being renamed the Immigrant and Employee Rights Section. It will remain part of DOJ’s Civil Rights Division. However, the individual in charge of the Immigrant and Employee Rights Section will still be referred to as Special Counsel due to statutory language. Thus, this may cause some confusion for attorneys and the public.

Probably the most significant change in the regulations is a definition of “discriminate” to clarify that an employer’s intent to discriminate must be based on national origin or citizenship status. This definition of intent does not consider what reason an employer may have had. Under the new rule, DOJ explains that if the employer is intentionally treating the permanent resident differently for an unlawful reason, such as citizenship status, then the employer has discriminated.

Other significant changes in the new regulations include:
  • Individuals who submit a discrimination claim within the 180-day period provided by law now have an additional 45 days to submit information if the Special Counsel decides that they did not provide enough information to meet the requirements for a “charge”;
  • Charges may be filed after the 180-day time limit under certain circumstances;
  • The Special Counsel may file a complaint based on an investigation the office initiated, up to five years after the date of alleged discrimination;
  • Definition of the term “citizenship status” includes refugees and asylees, which is consistent with Special Counsel’s current practice;
  • Definition of the statutory phrase – “more or different documents than required under such section” to be consistent with OCAHO case law;
  • Definition of the term “charge” to make it broader as to what is acceptable; and
  • Definition of the term “hire”.