As the saying goes, “No news is good news,” and HRLegalist is happy to report today that the final rule introduced this week by the Department of Justice, just in time for the holidays, introduces no new requirements for employers, which is about as good a gift as we can expect from the federal government! We report on the final rule simply as a reminder to our readers that now would be a good time to review your I-9 employment authorization policies.

On Monday, December 19, 2016, the Department of Justice, Civil Rights Division, issued a final rule that revises the Department’s regulations implementing certain provisions of the Immigration and Nationality Act (INA) pertaining to unfair immigration related employment practices. The final rule is intended to conform Department regulations with the statutory text and provide much needed updates in order to ensure effective investigations of unfair immigration related employment practices.  We report on this final rule simply as a reminder to our readers that now would be a good time to review your I-9 employment authorization policies.

The final rule relates back to the anti-discrimination provisions of the INA, enacted by Congress as part of the Immigration Reform and Control Act of 1996 (IRCA) to prohibit certain unfair immigration related employment practices. Specifically, the law prohibits employers from discriminating against an individual with respect to the hiring or termination of the individual because of his or her individual’s national origin or citizenship status.  IRCA also created the Office of Special Counsel for Immigration Related Unfair Employment Practices (Special Counsel) to enforce this provision.

The now familiar Form I-9 employment authorization process was created as a means of meeting IRCA’s two-fold mandate requiring employers to employ only those persons who are authorized to work in the United States, while at the same time forbidding discrimination against an individual in the hiring process based on national origin or citizenship status.   A subsequent amendment to IRCA made it unlawful for employers to require more or different documents or rejecting valid documents during the I-9 employment verification process.  Congress further amended the law by providing that unfair documentary practices were unlawful only if done for the purpose or with the intent of discriminating against an individual based on national origin or citizenship status.

IRCA is now twenty years old and I-9 compliance plans have been adopted by most U.S. employers. Employers will be relieved to know that the final rule announced on Monday introduces no major changes.  Rather, it conforms Department regulations with existing statutory provisions.  Significant revisions include the following:

  • The final rule incorporates the intent requirement contained in the amended statutes and holds that “discrimination” in the context of immigration related unfair employment practices, and, in particular, in the process of completing and maintaining the Form I-9, means the act of “intentionally treating an individual differently from other individuals because of national origin or citizenship status, regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility.”
  • Replaces references to Immigration and Naturalization Service (INS) with references to the Department of Homeland Security (DHS), in accordance with the Homeland Security Act of 2002, which eliminated the INS and reorganized its functions under the DHS.
  • Reflect the change in name from Office of Special Counsel for Immigration Related Unfair Employment Practices to the Immigrant and Employee Rights Section.

The final rule is not a cause for alarm and does not require employers to implement new federal policy. Rather, it is more in the order of agency housekeeping to align Department regulations with current legislation and agency practice.  HRLegalist sees this final rule as an opportunity for employers to renew their understanding of the anti-discrimination provisions of IRCA and also to review their I-9 compliance programs. And, as always, we urge our readers to consult legal counsel in the event of questions or concerns.