By Bruce Buchanan, Siskind Susser

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As immigration attorneys and readers of my blog have noticed, over the past several years, many of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) investigations of employers concerning discrimination and/or document abuse have begun with referrals from the U.S. Citizenship and Immigration Services (USCIS). In United States v. Louisiana Crane Company, 11 OCAHO no. 1246, an administrative law judge (ALJ) for the Office of Chief Administrative Hearing Officer (OCAHO) found that OSC does have the authority to investigate these cases after a referral from the USCIS.

The case started after the USCIS made a referral to the OSC for alleged pattern or practice of discrimination by Louisiana Crane requiring specific documents to establish employment eligibility. Louisiana Crane responded that USCIS had engaged in “malicious use of process” and the USCIS should be interpleaded as a relevant party. The government filed a motion to dismiss.

In denying Louisiana Crane’s motion, ALJ Stacy S. Paddack cited a number of sources for the authority to make referrals to the OSC: case law, statutory law, and memorandum of agreement.

For case law, the ALJ cited In Re Investigation of: Modern Maintenance Co., Inc., 2 OCAHO no. 359, 476, 477 (1991), where OCAHO stated “OSC’s investigation followed upon information received from INS. . . . In my judgment, the INS referral constitutes reasonable cause for investigation.” Second, the ALJ cited Hernandez, et al. v. Farley Candy Co., 5 OCAHO no. 765, 367, 368 n. 1 (1995), where OCAHO stated INS’s investigation of Respondent “for alleged § 1324a violations with regard to the same individuals who are Complainants in this case does not bar OSC from asserting its own cause of action under § 1324b.”

According to the ALJ, statutory and regulatory law also supported OSC. In United States v. McDonnell Douglas Corp., 3 OCAHO no. 507, 1053, 1061 (1993), an ALJ cited 8 U.S.C. § 1324b(d)(1) as supporting OSC’s “discretion to investigate unfair immigration-related employment practices on its own initiative, without a charging party, and the ability to file a complaint before an ALJ based on that investigation….” The ALJ in Louisiana Crane also stated 8 U.S.C. § 1324b(b)(1) and 28 C.F.R. § 44.300(a)(2) specifically have allowed legacy INS and Department of Homeland Security (DHS) to file charges with OSC “alleging that an unfair immigration-related employment practice has occurred or is occurring....”

A third source of authority is a 2010 Memorandum of Agreement between the OSC and USCIS which states that USCIS may refer case information related to “allegations of discrimination arising out of employer use of E-Verify” to the OSC. The Memorandum states the following as its legal authority: (1) Section 274B of the Immigration and Nationality Act; (2) Homeland Security Act of 2002; (3) INA § 1324a; and (4) the Privacy Act of 1974. The fourth source of authority, according to the ALJ, is that E-Verify users enter into a Memorandum of Understanding with DHS, stating DHS can use data collected for compliance and enforcement actions.

Therefore, the OCAHO ALJ held the authority referenced above demonstrates that OSC has authority to investigate and file a complaint “on its own initiative” without an underlying charge, which historically has included referrals from DHS.

This decision is particularly important because USCIS has increasingly been making referrals to OSC for investigation of discrimination.

siskind_susser_logo.jpg ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .