[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Rules and Regulations]
[Pages 91768-91792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30491]


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DEPARTMENT OF JUSTICE

28 CFR Parts 0 and 44

[CRT Docket No. 130; AG Order No. 3791-2016 No. RIN 1190-AA71]


Standards and Procedures for the Enforcement of the Immigration 
and Nationality Act

AGENCY: Civil Rights Division, Department of Justice.

ACTION: Final rule.

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SUMMARY: This rule revises the Department of Justice's (Department's) 
regulations implementing a section of the Immigration and Nationality 
Act (INA) concerning unfair immigration-related employment practices. 
The revisions conform the regulations to the statutory text as amended, 
simplify and add definitions of statutory terms, update and clarify the 
procedures for filing and processing charges of discrimination, ensure 
effective investigations of unfair immigration-related employment 
practices, reflect developments in nondiscrimination jurisprudence, 
reflect changes in existing practices (e.g., electronic filing of 
charges), reflect the new name of the office within the Department 
charged with enforcing this statute, and replace outdated references.

DATES: This rule is effective on January 18, 2017.

FOR FURTHER INFORMATION CONTACT: Alberto Ruisanchez, Deputy Special 
Counsel, Office of Special Counsel for Immigration-Related Unfair 
Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue

[[Page 91769]]

NW., Washington, DC 20530, (202) 616-5594 (voice) or (800) 237-2515 
(TTY); or Office of Special Counsel for Immigration-Related Unfair 
Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue 
NW., Washington, DC 20530, (202) 353-9338 (voice) or (800) 237-2515 
(TTY).

SUPPLEMENTARY INFORMATION: 

Executive Summary

    The anti-discrimination provision of the Immigration and 
Nationality Act (INA), section 274B, codified at 8 U.S.C. 1324b, was 
enacted by Congress as part of the Immigration Reform and Control Act 
of 1986 (IRCA), Public Law 99-603, to prohibit certain unfair 
immigration-related employment practices. Congress provided for the 
appointment of a Special Counsel for Immigration-Related Unfair 
Employment Practices (Special Counsel) to enforce this provision. 
Congress has amended 8 U.S.C. 1324b several times. On November 29, 
1990, by section 535 of the Immigration Act of 1990, Public Law 101-
649, Congress added a new subsection (a)(6) prohibiting covered 
entities from requesting more or different documents or rejecting valid 
documents during the employment eligibility verification process. See 8 
U.S.C. 1324b(a)(6) (1994). On September 30, 1996, by section 421 of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
(IIRIRA), Public Law 104-208, div. C, Congress further amended that 
provision by providing that unfair documentary practices were unlawful 
only if done ``for the purpose or with the intent of discriminating 
against an individual in violation of'' 8 U.S.C. 1324b(a)(1). See 8 
U.S.C. 1324b(a)(6) (2000). The Department has not updated the set of 
regulations implementing section 1324b, 28 CFR part 44, to reflect the 
statutory text as amended by IIRIRA. The revisions promulgated by this 
final rule apply to the Special Counsel's investigations and to cases 
adjudicated under section 1324b.
    The revisions to 28 CFR part 44 incorporate the intent requirement 
contained in the amended statute, and also change the regulatory 
provisions regarding the Special Counsel's investigation of unfair 
immigration-related employment practices. Specifically, the revisions 
update the ways in which charges of discrimination can be filed, 
clarify the procedures for processing such charges, and conform the 
regulations to the statutory text to clarify the timeframes within 
which the Special Counsel may file a complaint with the Office of the 
Chief Administrative Hearing Officer (OCAHO). The revisions also 
simplify the definitions of certain statutory terms and define 
additional statutory terms to clarify the full extent of the 
prohibitions against unfair immigration-related employment practices 
and to eliminate ambiguities in the regulatory text. Additionally, the 
revisions codify the Special Counsel's existing authority to seek and 
ensure the preservation of evidence during investigations of alleged 
unfair immigration-related employment practices. The revisions also 
replace references to the former Immigration and Naturalization Service 
with references to the Department of Homeland Security (DHS), where 
applicable, in accordance with the Homeland Security Act of 2002, 
Public Law 107-296 (HSA).
    Finally, the revisions reflect the change in the name of the office 
within the Department's Civil Rights Division that enforces the anti-
discrimination provision, from the Office of Special Counsel for 
Immigration-Related Unfair Employment Practices (OSC) to the Immigrant 
and Employee Rights Section.

Summary of Changes to the Final Rule

    The Department carefully considered the 47 individually-submitted 
comments received in response to the Notice of Proposed Rulemaking 
(NPRM) entitled Standards and Procedures for the Enforcement of the INA 
that was published in the Federal Register on August 15, 2016 (81 FR 
53965). Following several commenters' requests for an extension of the 
original 30-day comment period, on September 14, 2016, the Department 
extended the comment period by an additional 30 days, for a total of 60 
days (81 FR 63155). The comment period closed on October 14, 2016. 
After consideration of the comments, the Department is making four 
changes: One change to the definition of ``discriminate'' at Sec.  
44.101(e) to make clear that intent to discriminate must be based on 
national origin or citizenship status in order to violate 8 U.S.C. 
1324b; one change to Sec.  44.101(k)(3) to make the regulatory language 
mirror the statutory language; one change to Sec.  44.200(a)(3)(ii) to 
clarify the cross reference in that paragraph; and one technical change 
to Sec.  44.300(d) to correct the citation to Title VII of the Civil 
Rights Act of 1964, as amended.

Background on Legal Authority

    The authority to promulgate this rule lies in two sections of the 
INA. See 8 U.S.C. 1103, 1324b. By statute, the Special Counsel serves 
in the Department and enforces the anti-discrimination provision of the 
INA. 8 U.S.C. 1324b(c). The INA lays out the Attorney General's 
authority to administer and enforce those laws within Title 8, United 
States Code, that are conferred upon the Attorney General. 8 U.S.C. 
1103(a)(1). In addition to the Attorney General's authority to 
administer and enforce laws expressly conferred to the Attorney General 
under the INA, ``determination and ruling by the Attorney General with 
respect to all questions of law shall be controlling.'' Id. The same 
section of the INA authorizes the Attorney General to ``establish such 
regulations . . ., delegate such authority, and perform such other acts 
as the Attorney General determines to be necessary for carrying out 
this section.'' 8 U.S.C. 1103(g)(2); see also Homeland Security Act of 
2002, Public Law 107-296, sec. 1102 (adding ``(g)'' as a ``subsection'' 
of section 1103); Cormia v. Home Care Giver Servs., Inc., 10 OCAHO no. 
1160, 3 (2012) (noting that ``Congress gave the Attorney General the 
power to promulgate regulations to effectuate and enforce Sec.  1324b, 
as well as the power to delegate that authority'') (citing 8 U.S.C. 
1103(g)). In addition to the broad grant of authority to the Attorney 
General under 8 U.S.C. 1103, the anti-discrimination provision itself 
includes express delegations of rulemaking and other authorities to the 
Attorney General. See, e.g., 8 U.S.C. 1324b(c)(4) (to establish 
regional offices); 8 U.S.C. 1324b(f)(2) (to ensure that administrative 
law judges hearing cases under the statute and the Special Counsel have 
``reasonable access'' to examine evidence of persons or entities being 
investigated); cf. 8 U.S.C. 1324b(b)(1) (providing that charges ``shall 
contain such information as the Attorney General requires''); 8 U.S.C. 
1324b(e)(2) (providing that the Attorney General shall designate the 
administrative law judges who consider cases under section 1324b).

Discussion of Comments

    The following section reviews comments the Department received in 
response to the NPRM and sets forth the Department's responses to those 
comments. The Department received 47 comments on the NPRM by the close 
of the comment period, October 14, 2016. The Department's responses to 
comments regarding this rule's economic impact are included in the 
Regulatory Procedures section of this rule. Other comments are 
summarized below, along with the Department's responses.

General Comments

    Issue: Five commenters express support for the proposed rule, in 
whole

[[Page 91770]]

or in part. One commenter ``strongly supports the entirety of the 
Department's proposed rulemaking.'' Another commenter states that its 
employer members ``generally support those sections of the proposed 
rule that will clarify existing investigation and enforcement 
procedures for the Special Counsel and update existing language to 
reflect statutory changes.''
    Response: The Department acknowledges these expressions of support.
    Issue: The Department received one comment two days before the 
close of the comment period requesting an extension of the comment 
period ``until executive and legislative positions are filled in 
2017.''
    Response: The Department declines to grant the request made through 
this comment. The Department has provided a 60-day comment period, 
which is reasonable and appropriate. The Department has reviewed all 
comments carefully and sees no reason to delay the publication of this 
rule.
    Issue: A number of commenters ask the Department not to promulgate 
the rule based on various concerns. The Department is addressing the 
specific concerns raised by these commenters below, by subject.
    Response: The Department addresses below the specific concerns that 
these commenters raise. The Department will make this rule final as 
proposed with four changes.
    Issue: One commenter asks the Department not to promulgate the rule 
on the basis that it is ``ultra vires to the rule making authority and 
functions vested in the [Attorney General] and OSC by Congress.'' This 
commenter cites to 8 U.S.C. 1103(g)(1) to support the commenter's 
position that the Attorney General is limited to promulgating 
substantive rules under the INA relating only to the functions of the 
Executive Office for Immigration Review, another component within the 
Department. Based on that reading, this commenter claims that the 
Attorney General and Special Counsel lack the authority to issue rules 
``with regard to the interpretation and enforcement of the immigration-
related anti-discrimination provisions of INA Sec.  274B.'' This 
commenter also claims that the Attorney General and the Special Counsel 
lack the authority ``to regulate standards governing the order and 
burden of proof to be applied by administrative law judges (ALJs) and 
the courts for the purpose of evaluating claims of citizenship or 
national origin discrimination, or document abuse.'' This commenter 
points to the fact that the Attorney General and the Special Counsel 
have ``refrain[ed] for 30 years from issuing rules regarding the burden 
and standard of proof governing claims of discrimination under INA 
Sec.  274B'' as an implicit recognition that ``these adjudicative 
functions lie exclusively with OCAHO administrative law judges.'' 
Another commenter describes the NPRM as an ``unlawful, ultra vires, 
expansion of DOJ OSC power.''
    Response: The Department disagrees with these comments and has 
decided that it will promulgate this rule. As discussed in the 
Background on Legal Authority section above, the Attorney General has 
the authority to promulgate this rule. While one commenter believes 
that 8 U.S.C. 1103(g)(1) precludes the Department from issuing these 
regulations, we contend that that paragraph cannot be read in 
isolation. As discussed above, 8 U.S.C. 1103(a)(1) together with 
subsection 1103(g)--and section 1324b--provide the Attorney General 
with the necessary authority to promulgate this rule. Furthermore, 
nothing in this rule alters the burden or standards of proof for 
assessing whether a person or entity has violated the statute, nor does 
the rule alter the authority of administrative law judges to adjudicate 
cases under section 1324b.
    Issue: Two commenters express concern that the Department does not 
enforce this law sufficiently. One of these commenters expresses 
appreciation for the government's interest in solving these problems, 
and states, ``[t]hese immigrants, who are not being hired and wish to 
fight the prejudice'' cannot combat discrimination in hiring because of 
``their lack of knowledge of the U.S legal system. They already have to 
face obstacles of coming to the United States and taking on a new 
challenge of trying to establish themselves and then business owners 
are denying them the basic rights every American is given.''
    Response: Although the Department recognizes the challenges that 
many employment-authorized immigrants face in overcoming discriminatory 
barriers, the Department has vigorously enforced this law to combat the 
discriminatory barriers identified by the commenter. The Department 
also engages in extensive outreach to the public to educate workers and 
employers about their rights and responsibilities under this law. 
Moreover, promulgating this rule is critical to conforming the existing 
regulations to the law. Information about the Department's enforcement 
and outreach work under this law is available at http://www.justice.gov/crt/about/osc.
    Issue: One commenter expresses concern that an employer that 
refuses to hire a worker who lacks employment authorization will be 
accused of discrimination, and that the employer that hires the same 
worker will be accused of violating the separate prohibition against 
knowingly hiring an unauthorized worker, found at 8 U.S.C. 1324a.
    Response: The Department disagrees with the accuracy of the example 
set forth in this comment. Section 1324b protects only employment-
authorized individuals from discrimination under the INA. 8 U.S.C. 
1324b(a)(1) (``It is an unfair immigration-related employment practice 
for a person or other entity to discriminate against any individual 
(other than an unauthorized alien, as defined in section 1324a(h)(3) of 
this title) . . .'' (emphasis added)); see also 8 U.S.C. 1324a(h)(3) 
(defining ``unauthorized alien'' as an alien that is not ``lawfully 
admitted for permanent residence'' or ``authorized to be so 
employed''). As a result, an employer's refusal to hire a worker based 
on that worker's lack of employment authorization does not violate the 
INA's anti-discrimination provision. See 8 U.S.C. 1324b(a)(2)(C). The 
Department, along with DHS's U.S. Citizenship and Immigration Services 
(USCIS) and Immigration and Customs Enforcement (ICE), has issued 
several public education materials that discuss how employers can avoid 
discrimination while also complying with legal requirements to verify 
employment eligibility and ensure they do not knowingly employ a worker 
who lacks employment authorization. For more information, visit 
www.justice.gov/crt/employer-information; https://www.uscis.gov/i-9-central; https://www.ice.gov/sites/default/files/documents/Document/2015/i9-guidance.pdf.

Office Name Change

    Issue: One commenter disagrees with the proposal to change the name 
of the office that enforces section 1324b, from the Office of Special 
Counsel for Immigration-Related Unfair Employment Practices to the 
Immigrant and Employee Rights Section. The commenter claims that the 
new name ``is . . . not in line with the statute'' because section 
274b(c) of the INA requires the President to appoint a Special Counsel 
to handle ``Immigration-Related Unfair Employment Practices,'' not for 
``Employee Rights'' more generally. Moreover, the commenter claims that 
changing the name of the office will alter the Special Counsel's 
authority to enforce the law.

[[Page 91771]]

    Response: The Department disagrees with this comment. The statute 
does not prescribe a name for the office that enforces section 1324b 
and the change in office name does not affect the Special Counsel's 
authority under the law. For the reasons discussed in the NPRM, in 
particular to eliminate public confusion regarding two offices in the 
Federal Government with the same name, the Department is changing the 
office's name to the Immigrant and Employee Rights Section.

Comments Related to the Rule's Interpretation of Discrimination

    The Department received approximately 30 comments on the proposed 
rule's revisions related to the meaning of discrimination under section 
1324b, many of which cited Sec.  44.101(e) and (g) as areas of concern. 
Most of the comments about these proposed revisions raised one or more 
of the following concerns: (1) The proposed revisions seek to remove 
the statutory requirement to show discriminatory intent; (2) the 
proposed revisions seek to change the long-established evidentiary 
paradigms used by courts to determine whether discrimination has been 
proved; and (3) the proposed revision to Sec.  44.200(a)(3) would 
remove a showing of ``harm'' to establish a violation.
    Throughout the comments, many commenters expressed concerns that 
the proposed revisions would lead to ``strict liability'' for 
``innocent'' or ``unintentional conduct.'' Some commenters indicate 
that the proposed revisions would lead to violations under the statute 
based on a disparate impact theory of discrimination. Other commenters 
object to the proposed revisions for not requiring that an employer act 
with ill will or animus in order to violate the statute.
    The Department agrees that section 1324b requires a showing of 
intentional discrimination on the basis of a protected characteristic 
and that a violation cannot be established under a strict liability 
standard or a disparate impact theory. The Department's position 
remains that ill will or animus is not required to commit 
discrimination under the statute. To the extent that the proposed 
revisions created any confusion on these points, the Department is 
discussing these comments in more detail below.
    1. Comments on the proposed revisions' effect on discriminatory 
intent. Most comments relating to the meaning of discriminatory intent 
under section 1324b address the definitions of ``discriminate'' at 
Sec.  44.101(e) and the phrase ``for the purpose or with the intent of 
discriminating against an individual in violation of paragraph (1)'' at 
Sec.  44.101(g). Regardless of whether the discussion is about 
discrimination in hiring, firing, or recruitment and referral for a fee 
in violation of 8 U.S.C. 1324b(a)(1), or about discrimination in unfair 
documentary practices under 8 U.S.C. 1324b(a)(6), the analysis for 
determining discriminatory intent is the same so the Department will 
address comments on the topic of intent together.
    Issue: One commenter expresses support for the definition of 
``discriminate'' at Sec.  44.101(e). This commenter states that the 
``clarity provided by the proposed regulation with regard to Sec.  
1324b(a)(6) is of particular importance because,'' in the commenter's 
experience, including that of its affiliate unions, ``it is not 
uncommon for employers to require more or different documents for 
employment verification from non-citizens than from U.S. citizens, or 
from certain groups of workers based on their national origin as 
opposed to workers who `appear' to be U.S. citizens.''
    Response: The Department agrees with this comment and, as discussed 
in the NPRM, this definition clarifies what discrimination means under 
section 1324b. As the commenter suggests, and as discussed below, the 
definition of ``discriminate'' includes intentionally treating 
individuals differently from others because of a protected 
characteristic.
    Issue: Several commenters believe that the proposed revisions seek 
to remove the discriminatory intent element from section 1324b 
altogether. Many of these commenters discuss at length the Ninth 
Circuit decision in Robison Fruit Ranch, Inc. v. United States, 147 
F.3d 798 (9th Cir. 1998), in which the Court held that post-1996, a 
violation of 8 U.S.C. 1324b(a)(6) required a showing of discriminatory 
intent. Id. at 801. Numerous commenters provide the following example 
of a situation that the commenters believe could violate the law under 
the proposed revisions: A U.S. citizen decides unprompted to show a 
driver's license and unrestricted Social Security card for the 
employment eligibility verification process while a lawful permanent 
resident decides unprompted to show a Form I-551 Permanent Resident 
Card. One commenter further objects that the proposed definition of 
discriminate ``appears to include any employer conduct regardless of 
whether that conduct is in any way related to an employee's immigration 
status.'' (emphasis in original).
    Response: The Department agrees that the statute prohibits only 
intentional discrimination, and added paragraphs (e) and (g) to make 
that intent requirement clear. Indeed, for claims under section 
1324b(a)(6), the regulations must be revised because the regulations in 
effect today include no intent requirement, even though the statute was 
amended to require discriminatory intent in 1996 and the Special 
Counsel has enforced the law as amended since 1996. However, in light 
of these comments, the Department is making one clarifying edit to the 
definition of ``discriminate'' in paragraph (e) to address any 
confusion. The Department is also more clearly explaining these 
proposed revisions to address any confusion about the meaning of 
discrimination and to reiterate that discriminatory intent is required 
in order to violate the statute.
    As an initial matter, paragraph (e)'s definition of 
``discriminate'' as proposed solely addressed what that term means, 
namely, ``intentionally treating an individual differently from other 
individuals, regardless of the explanation for the differential 
treatment, and regardless of whether such treatment is because of 
animus or hostility.'' In the sentence in which the term 
``discriminate'' appears in section 1324b(a)(1), the statute makes 
clear that any discrimination must be ``because of'' a protected 
characteristic, i.e., citizenship status or national origin. Reading 
the regulatory definition together with the statute, the language 
prohibits intentionally treating an individually differently from 
others because of a protected characteristic--the classic definition of 
disparate treatment discrimination. Nonetheless, based on the comments 
received, the Department recognizes the possibility that when read 
alone, paragraph (e)'s definition as proposed may create confusion. 
Therefore, the Department has decided to add language to the regulatory 
text to make even clearer that the definition at paragraph (e) must be 
read together with the statute's broader prohibition against 
discrimination based on national origin or citizenship status.
    To the extent that commenters believe the proposed revisions would 
seek to prohibit any difference in treatment whatsoever, the law and 
regulations make clear that only disparate treatment based on a 
protected characteristic is prohibited. See 8 U.S.C. 1324b(a)(1), 
(a)(6). Further, as discussed in the NPRM, a primary purpose of 
updating these regulations is to conform the regulations to the 
statute, which was amended in 1996 to provide that unfair documentary 
practices were unlawful

[[Page 91772]]

only if done ``for the purpose or with the intent of discriminating 
against an individual in violation of'' 8 U.S.C. 1324b(a)(1). The 
definition at paragraph (g) makes clear that discrimination under 8 
U.S.C. 1324b(a)(6) also requires ``intentionally treating an individual 
differently based on national origin or citizenship status.''
    The definitions in these paragraphs reflect longstanding black 
letter civil rights law and the Special Counsel's long-held position on 
what constitutes intentional discrimination under section 1324b. See, 
e.g., City of Los Angeles Dep't of Water and Power v. Manhart, 435 U.S. 
702, 711 (1978) (finding sex discrimination where employer required 
female employees to make larger contributions than men to its pension 
fund because such treatment satisfies ``the simple test of whether the 
evidence shows `treatment of a person in a manner which, but for that 
person's sex, would be different' ''); Int'l Union v. Johnson Controls, 
Inc., 499 U.S. 187, 200 (1991) (applying the ``simple test'' in 
Manhart). The holding in Robison, 147 F.3d 798, on which several 
commenters rely for their position that the Department is seeking to 
remove the intent requirement from the statute, is also in harmony with 
the Special Counsel's position. In that case, the Ninth Circuit held 
that ``Congress intended a discrimination requirement in the 1990 
statute and merely clarified the statute to state that intent in its 
1996 amendment.'' Robison Fruit Ranch, Inc., 147 F.3d at 801. The Court 
did not find discrimination because the employer's documentary requests 
were made to both U.S. citizens and non-U.S. citizens. Id. This 
decision is consistent with the Department's position on what 
discrimination means under the statute.
    While several commenters state that the Department's proposed 
definition of discrimination is based exclusively on references to 
OCAHO decisions or the Special Counsel's prior positions, the NPRM and 
this rule contain several references to seminal Supreme Court cases 
that support the Department's proposed definition. Moreover, the 
suggestion that OCAHO case law is insufficient is misguided because 
Congress authorized OCAHO administrative law judges (ALJs) to decide 
cases under the statute. See 8 U.S.C. 1324b(e)(2).
    In one example provided by a number of commenters mentioned above, 
a lawful permanent resident chooses to show a Permanent Resident Card 
for the employment eligibility verification process while a U.S. 
citizen provides a driver's license and Social Security card, both 
``without any prompting by the employer.'' The employer in this example 
would not face liability unless the employer was requesting specific, 
more, or different documents from workers for employment eligibility 
verification purposes because of the workers' protected characteristic. 
If, however, the employer allows each worker to show his or her choice 
of valid documentation for the employment eligibility verification 
process, the employer would not be discriminating in violation of the 
statute.
    Issue: A number of commenters object to what they claim is an 
attempt to apply a strict liability standard to ``innocent'' or 
``unintentional conduct'' that lacks the necessary ``ill will or 
animus.'' One commenter points to the dictionary definitions of 
``discriminate,'' claiming that the proper legal definition of 
``discriminate'' involves ``unfair or bad treatment,'' and that if the 
definition just meant ``different'' treatment, employers who engage in 
``innocent behavior [would be] swept up in the enforcement apparatus.'' 
Another commenter states that Congress intended a showing of animus or 
ill will to establish a violation and the regulation should reflect 
that legislative intent. This commenter objects that the definition of 
``discriminate'' would ``actually apply to employers who intentionally 
treat individuals differently even if [the employers] want to help [the 
employees] through the employment eligibility process.'' The commenter 
suggests that under the proposed revisions, providing sign language 
assistance to a worker completing the Form I-9 or allowing a family 
member or friend to serve as an interpreter could constitute 
intentional discrimination and violate the law. Other commenters 
provide different examples of conduct they see as helpful to a worker 
that they claim could be a violation of the law under the proposed 
revisions, such as an employer that asks a lawful permanent resident 
who neglects to include a USCIS/alien number in Section 1 ``for 
documentation,'' or an employer that says to a worker who selected 
lawful permanent resident in Section 1 of the Form I-9, ``Oh, I see you 
are a permanent resident. Do you have your green card for completion of 
Section 2 [of the Form I-9]?'' Two commenters share a similar example 
involving a human resources associate who seeks to assist new employees 
complete the Form I-9 by asking whether the employee is a U.S. citizen 
or born outside of the United States, and depending upon the answer, 
suggests specific documents that could satisfy Form I-9 requirements. 
Another commenter, relying on ``good faith'' defenses set forth in 
section 1324a, suggests that discrimination can never include ``good 
faith efforts to verify the employment eligibility'' of workers. This 
commenter also criticizes the NPRM's use of language from United States 
v. Life Generations Healthcare, LLC, 11 OCAHO no. 1227, 22-23 (2014), 
arguing that the Department's references to Life Generations fail to 
support the proposition that discrimination in violation of section 
1324b does not require ill will or malice.
    Response: The Department disagrees that the law requires a showing 
of animus or ill will to establish discriminatory intent or that 
section 1324b recognizes a ``good faith'' defense to discrimination. An 
employer cannot justify discriminatory conduct simply by claiming a 
lack of ill will or animus, or that differential treatment based on 
citizenship or national origin is nevertheless legal because the 
employer is trying to assist workers in ``good faith.'' The 
Department's position mirrors the Supreme Court's and other courts' 
analyses on what constitutes intentional discrimination in a variety of 
contexts, including the principle that explicit discrimination is 
disparate treatment even absent a malevolent motive, and is consistent 
with OCAHO case law. See, e.g., Johnson Controls, 499 U.S. at 199 
(stating that, in the context of Title VII, ``absence of a malevolent 
motive does not convert a facially discriminatory policy into a neutral 
policy with a discriminatory effect. Whether an employment practice 
involves disparate treatment through explicit facial discrimination 
does not depend on why the employer discriminates but rather on the 
explicit terms of the discrimination.''); Life Generations Healthcare, 
LLC, 11 OCAHO no. 1227 at 22-23 (``It is not required that malice or 
ill will be shown, and the absence of a malevolent motive does not 
alter the character of a discriminatory policy.'') (citing Johnson 
Controls)); see also Kentucky Retirement Systems v. E.E.O.C., 554 U.S. 
135, 161 (2008) (stating that, under the Age Discrimination in 
Employment Act (ADEA), ``an otherwise discriminatory employment action 
cannot be rendered lawful because the employer's motives were 
benign''); Manhart, 435 U.S. at 711 (articulating the ``simple test of 
[sex discrimination as] whether the evidence shows `treatment of a 
person in a manner which but for that person's sex would be 
different'''); E.E.O.C. v. Baltimore Cnty., 747 F.3d 267, 273 (4th

[[Page 91773]]

Cir. 2014) (``To prove facial discrimination under the ADEA, a 
plaintiff is not required to prove an employer's discriminatory 
animus.''); Holland v. Gee, 677 F.3d 1047, 1059 (11th Cir. 2012) 
(stating that in an employment discrimination case that ``insofar as [a 
respondent] insists that there must be proof of ill will or `animus,' 
that suggestion is misguided''); Community House, Inc. v. City of 
Boise, 490 F.3d 1041, 1049 (9th Cir. 2006) (stating that ``ostensibly 
benign purpose'' for differential treatment does not overcome 
discriminatory intent under the Fair Housing Act); Bangerter v. Orem 
City Corp., 46 F.3d 1491, 1500-01 (10th Cir. 1995) (holding that ``a 
plaintiff need not prove the malice or discriminatory animus of a 
defendant to make out a case of intentional discrimination where the 
defendant expressly treats someone protected by the [Fair Housing Act] 
in a different manner than others''). This same interpretation of 
discrimination has long been described in the Special Counsel's public 
education materials, Web site, and outreach presentations. In short, a 
definition of discrimination that requires complainants to prove that 
an employer acted with ill will, hostility or animus, in addition to 
showing differential treatment on the basis of a protected 
characteristic, finds no support in the statutory text or case law.
    While some commenters criticize the NPRM's characterization of Life 
Generations, the Life Generations case makes clear that ``a person has 
the intent to discriminate if he or she would have acted differently 
but for the protected characteristic.'' 11 OCAHO no. 1227 at 29. The 
ALJ in Life Generations explained that the proper test to determine 
discriminatory intent asks whether the outcome or treatment received 
would have been different if the protected classes had been reversed. 
Id. at 22-23. The ALJ in that case found the requisite discriminatory 
intent because it was ``evident . . . that had the groups been 
reversed, the outcome would have differed'' despite the fact that the 
human resources personnel ``bore no hostile motives toward foreign-born 
employees, and had no subjective discriminatory intent.'' Id. In 
finding that the employer had the requisite discriminatory intent under 
section 1324b(a)(6), the ALJ relied on Supreme Court precedent 
establishing that ``the absence of a malevolent motive does not alter 
the character of a discriminatory policy.'' Id. at 23 (citing Johnson 
Controls, 499 U.S. at 199); see also United States v. Gen. Dynamics 
Corp., 3 OCAHO no. 517, 1121, 1163 (1993) (``An employer knowingly and 
intentionally discriminates on a prohibited basis if it deliberately 
treats a job applicant differently on the basis of the applicant's 
citizenship status regardless of the employer's motivation for the 
discrimination.''). The proposed revisions correctly characterize the 
Life Generations ruling and are consistent with its analysis of 
discriminatory intent under section 1324b.
    We further note that a number of the commenters' examples would not 
violate the statute as long as the employers are not treating employees 
differently because of a protected characteristic. In one example, an 
employer allows an employee's friend or family member to help translate 
the Form I-9 for the employee. Such an act would not be considered 
discrimination unless the employer allowed only certain employees to 
have a friend or family member assist in completing the Form I-9 based 
on citizenship status or national origin.
    We agree that other commenters' examples could raise potential 
violations, but this conclusion is based on the statutory language in 
effect for decades and the Special Counsel's long-standing positions. 
In the example of the employer who asks a lawful permanent resident for 
documentation after the worker fails to provide a USCIS/alien number in 
Section 1, the employer would be discriminating in violation of section 
1324b(a)(6) if the employer did not ask other workers for documentation 
to verify missing information in Section 1. In other words, if an 
employer requested that lawful permanent residents who failed to write 
their USCIS/alien number show a document with that number, but did not 
request the same of U.S. citizens who left Form I-9 fields blank (e.g., 
zip code or date of birth), that employer may well violate section 
1324b(a)(6). More broadly, it is not clear from the example why the 
hypothetical employer would not simply ask the lawful permanent 
resident to write in the missing USCIS/alien number instead of asking 
for a document.
    In another example, an employer that says to a lawful permanent 
resident, ``Oh, I see you are a lawful permanent resident. Do you have 
your green card for Section 2?'' may also be acting in violation of the 
law. Employers may not request specific documents for employment 
eligibility verification purposes based on a worker's citizenship 
status or national origin. Regarding this specific example, lawful 
permanent residents do not have to show their permanent resident card 
or ``green card'' when they start working; if an employer requests 
specific documentation from lawful permanent residents but does not 
request specific documents of U.S. citizens, it would be 
discrimination. And as with the above example, the employer in this 
example would be liable under the current statutory language, 
regardless of whether the Department amended the implementing 
regulations.
    Similarly, in the example involving a human resources associate 
asking for an employee's citizenship status and then offering 
suggestions for documentation that the employee might have based on the 
answer, the act may indeed violate the law if the employer's actions 
amount to requesting specific documents for employment eligibility 
verification purposes from workers based on their citizenship status or 
national origin.
    The Department further notes that many of the examples provided by 
commenters characterize the act of asking for specific documents from 
workers during the employment eligibility verification process as 
``assistance.'' The Department disagrees with this characterization. 
Requesting specific employment eligibility verification documents from 
employees unnecessarily limits their choice of documentation. An 
employer that is interested in helping workers through the employment 
eligibility verification process should provide all workers with the 
Lists of Acceptable Documents and explain to them that they may present 
one List A document or one List B document and one List C document.
    Because the text of section 1324b does not contain a ``good faith'' 
defense, unlike section 1324a, the Department will not insert such a 
defense to discrimination in the proposed revisions.
    Issue: One commenter disagrees with changes to Sec.  44.200(a)(1)'s 
description of the prohibition against discrimination in hiring, 
firing, recruitment and referral for a fee. Specifically, this 
commenter disagrees with the removal of the word ``knowingly'' and 
states, ``one must `know' they are discriminating to be liable under 
this intentional act'' and that it was ``illogical'' for the Department 
to remove what the commenter believes is a ``required element'' for 
establishing a violation.
    Response: The Department disagrees with this comment and is 
adopting the language from the proposed rule without change. The 
proposed revision properly reflects the statute's requirement that a 
person or entity must engage in ``intentional'' discrimination. 
Further, the Department disagrees that a person or entity must know it 
is

[[Page 91774]]

discriminating to violate the statute; as discussed in the responses to 
other comments above, the statute requires that an employer 
intentionally treat individuals differently based on their citizenship 
status or national origin. An employer's ``knowledge'' that this 
disparate treatment constitutes ``discrimination'' is not an element of 
a violation.
    Issue: A number of commenters disagree with the change in 
terminology in Sec.  44.200(a)(3) from ``documentation abuses'' to 
``unfair documentary practices.'' These commenters stated that these 
changes ``blur[ ] the line of intent required'' to establish a 
violation and are part of a ``march toward strict liability.''
    Response: The Department disagrees with these comments. As 
discussed in the NPRM, the change from ``documentation abuses'' to 
``unfair documentary practices'' is intended to more clearly describe 
the prohibited conduct. In addition, this change in terminology more 
closely tracks the statutory language and has no impact on the intent 
required to prove a violation.
    2. Comments regarding the proper evidentiary frameworks for 
establishing discrimination. Several commenters raise concerns that the 
proposed revisions do not comply with the proper evidentiary frameworks 
for analyzing discrimination claims.
    Issue: A number of commenters claim that the rule's definition of 
``discriminate'' shifts the burden to the employer, contrary to well-
established discrimination case law. Several commenters believe the 
proposed definition of ``discriminate'' ``steamrolls over the substance 
and procedure of well-established Title VII law,'' and, according to 
another commenter, converts cases under 8 U.S.C. 1324b to ``disparate 
impact cases that are outside of OSC's jurisdiction.'' One commenter 
claims that the Department is seeking to import a complainant's burden 
of proof at the liability stage in a pattern or practice case to the 
disparate treatment circumstantial evidence context. This commenter 
insists that paragraph (e)'s definition of ``discriminate'' in the NPRM 
``directly contradicts'' the traditional burden-shifting framework 
recognized by OCAHO in U.S. v. Diversified Technology and Services of 
Virginia, Inc., 9 OCAHO no. 1095, 13 (2003). Yet another commenter 
states that ``[t]he proposed rule would essentially presume 
discrimination at the first stage.'' Another commenter believes the 
proposed revisions would ``effectively remove the employer's ability to 
offer any defense or non-discriminatory explanation for its actions.''
    Response: The Department disagrees that the definition of 
``discriminate'' or any other proposed revision alters the long-
established evidentiary burdens to prove discrimination, but as 
discussed above has added clarifying language to the definition of 
``discriminate'' to address any confusion about what is required to 
show discrimination in violation of the law.
    Section 1324b is modeled after Title VII of the Civil Rights Act of 
1964, and case law under that statute ``has long been held to be 
persuasive in interpreting Sec.  1324b.'' Sodhi v. Maricopa Cty. 
Special Health Care Dist., 10 OCAHO no. 1127, 7-8 (2008). The 
evidentiary frameworks set forth in McDonnell Douglas Corp. v. Green, 
411 U.S. 792, 802 (1973), for individual claims of discrimination and 
in International Brotherhood of Teamsters v. United States, 431 U.S. 
324, 360-62 (1977), for pattern or practice claims of discrimination 
apply to cases under section 1324b. The Department has consistently 
relied on such frameworks when litigating cases before OCAHO. Moreover, 
OCAHO has analyzed cases under section 1324b using these traditional 
frameworks, including in Diversified Technology, 9 OCAHO no. 1095, and 
Life Generations, 11 OCAHO no. 1227. The definition of ``discriminate'' 
in the proposed rule does not alter the parties' respective burdens in 
a pattern or practice claim or individual claim, and the McDonnell 
Douglas and Teamsters frameworks set forth by the Supreme Court in 
interpreting Title VII continue to apply.
    An example provided by several commenters helps to illustrate the 
traditional framework for establishing an intentional discrimination 
claim, which the proposed revisions do not change. In this example, an 
employer's Forms I-9 show ``that the overwhelming majority of non-
citizens had provided a List A document (their [Form I-551 Permanent 
Resident] card), whereas the overwhelming majority of U.S. citizens had 
provided a List B and a List C document,'' and ``the employer offers no 
guidance to new employees on completing the Form I-9 and accepts 
precisely the documents volunteered by the employees.'' The commenters 
believe that under the proposed revisions and the recent OCAHO decision 
in Life Generations, 11 OCAHO no. 1227 at 22, the Special Counsel and 
OCAHO could nevertheless ``find discriminatory intent by the employer, 
triggering sanctions.'' This concern misinterprets the proposed 
revisions and the Life Generations case. Although statistical 
disparities can ``serve an important role'' in establishing a prima 
facie case of discrimination, Teamsters, 431 U.S. at 339-40, the 
employer's action in the commenters' example does not amount to 
discrimination because the employer did not request more, different or 
specific documents, or reject valid documentation, based on a protected 
class. Even assuming a different example where a complainant makes out 
a prima facie case of discrimination that includes statistical evidence 
showing that different protected classes presented different documents, 
the employer could then provide a legitimate, non-discriminatory reason 
for the statistical disparity. For instance, the employer may state 
that the employees volunteered to show those documents with no request 
by the employer. The complainant would then have an opportunity to 
offer evidence rebutting the employer's legitimate non-discriminatory 
reason. Ultimately, the burden still rests on the complainant to prove 
that the employer requested specific documents from employees based on 
their protected class.
    Given the above, the Department disagrees that the NPRM's quotes 
from the Life Generations case are taken out of context. While Life 
Generations applied the evidentiary framework in Teamsters, the 
definition at paragraph (e) applies regardless of whether a case 
involves an individual claim of discrimination analyzed under McDonnell 
Douglas, a pattern or practice claim decided under Teamsters, or a case 
based on direct evidence of discrimination. What the Department wishes 
to make clear in these proposed revisions, and specifically in the 
definitions in paragraphs (e) and (g) of Sec.  44.101 that the 
Department is adopting in this rule, is that an employer cannot 
overcome evidence of discrimination simply by claiming that the 
discriminatory behavior (which in the context of unfair documentary 
practices would be requests for more, different, or specific documents, 
or the rejection of valid documentation, based on an employee's 
citizenship status or national origin) was somehow justified because it 
was meant to ``help'' workers or was not based on ``ill will'' or 
``animus.'' Such explanations cannot constitute legitimate, non-
discriminatory reasons because, by their very terms, the explanations 
acknowledge that there is disparate treatment based on a protected 
class.
    As noted above, the Department agrees that disparate impact 
liability is unavailable under section 1324b. None

[[Page 91775]]

of the proposed revisions affects that conclusion.
    Issue: In contrast to the comments above, one commenter believes 
that 8 U.S.C. 1324a offers the preferred framework over Title VII for 
interpreting discrimination under 8 U.S.C. 1324b. This commenter states 
that section 1324b ``is not a `stand-alone' anti-discrimination 
statute, and that [the Special Counsel] cannot interpret the statute as 
if it were. Rather, Sec.  [1324b] is irrevocably tethered to the scope 
of the employer sanctions regime, and [the Special Counsel's] 
regulatory jurisdiction does not extend beyond those anti-
discrimination concerns that are reasonably related to employer 
sanctions or the employment verification requirements of Sec.  
[1324a].'' This commenter points to a shared historical context for the 
two provisions and the fact that 8 U.S.C. 1324a requires that employers 
treat certain individuals differently in particular contexts based on 
the lack of, type of, or duration of employment authorization. This 
commenter further states that ``Congress intended Sec.  [1324b] . . . 
to account for the particular complexities in the immigration field 
that differ from the broader and more absolute prohibitions against 
employment discrimination in the Title VII context,'' and that ``Sec.  
[1324b] stands . . . on a different footing from other types of 
employment discrimination.''
    Response: The Department does not believe any change to the rule is 
required by this comment. It is well-accepted that section 1324b should 
be read within the context of the overarching scheme that Congress 
created in IRCA. However, employers that comply with section 1324a can 
also comply with section 1324b, and the fact that the law requires 
employers to treat employees differently based on their immigration 
status in some instances under section 1324a does not justify using a 
different standard for what discrimination under section 1324b means, 
thereby departing from black letter civil rights law and the Special 
Counsel's long-held positions. OCAHO has long looked to Title VII case 
law in interpreting section 1324b. See Sodhi, 10 OCAHO no. 1127 at 7-8 
(``Because Sec.  1324b was expressly modeled on Title VII of the Civil 
Rights Act of 1964 as amended . . . case law developed under that 
statute has long been held to be persuasive in interpreting Sec.  
1324b.''). The Department agrees with OCAHO precedent that the 
evidentiary frameworks and principles that the Supreme Court has 
established to analyze employment discrimination cases under Title VII 
are highly instructive in interpreting section 1324b.
    The Department also disagrees with the commenter's suggestion that 
because section 1324a requires employers to treat certain individuals 
differently in particular contexts based on their employment 
authorization, citizenship status and national origin should be viewed 
as qualitatively different than other protected classes. Section 1324b 
carefully lays out the available exceptions to the general prohibition 
against discrimination based on citizenship status or national origin. 
See 8 U.S.C. 1324b(a)(2)(A), (a)(2)(C), (a)(4). Apart from those 
exceptions, the Department believes that citizenship status and 
national origin should be viewed and analyzed in the same manner as any 
other protected class for discrimination purposes.
    3. Comments on the ``harm'' required to establish a violation of 
section 1324b(a)(6). The Department received a number of comments 
regarding how, if at all, the proposed revisions would change the 
conduct required to establish an unfair documentary practice, namely, 
what is required to establish a ``harm'' under the statute.
    Issue: One commenter expresses support for the proposed revisions 
to Sec.  44.200(a)(3), and states that it is ``entirely consistent with 
the statute's remedial scheme to allow OSC or a private complainant to 
seek to remedy unfair documentary practices even where no employee has 
experienced economic harm, as both reviewing courts and administrative 
law judges have held.''
    Response: The Department appreciates this comment.
    Issue: A number of commenters state that this rule would remove the 
requirement to show an individual was ``harmed'' to establish 
liability. The commenters do not specify what they refer to as 
``harm,'' though some specifically pointed to the proposed revision's 
clarification at Sec.  44.200(a)(3)(ii), which explains that a 
violation of section 1324b(a)(6) does not require proof of an 
``economic harm.'' Another commenter states that discrimination under 
section 1324b(a)(6) must include some harm other than just treating 
people differently, such as ``unfavorable'' treatment or ``abusive'' 
behavior.
    Response: The Department believes no change is warranted by these 
comments. As discussed above, a finding of a violation under the law is 
premised on a showing of discrimination. As discussed in the NPRM, the 
statutory text does not include any language requiring an economic 
injury to establish a violation under section 1324b(a)(6). Moreover, 
the harm or ``unfavorable'' treatment in a claim under section 
1324b(a)(6) is subjecting a worker to a discriminatory document request 
or rejection based on the worker's citizenship status or national 
origin. This has been the statutory requirement since the 1996 
amendments, and the proposed revisions make no change to the elements 
required to establish a violation.

Definitions

    The Department received several comments regarding the definitions 
in Sec.  44.101 and discusses them below.
    Issue: The Department received one comment on the definition of 
``charge'' in paragraph (a). The commenter disagrees with the change in 
this definition to eliminate the requirement upon a charging party to 
identify the injured party's specific immigration status to satisfy the 
regulatory definition of a charge. According to this commenter, this 
change may cause the Special Counsel to ``not properly allocate its 
resources'' because the Special Counsel would not have information 
about immigration status. The comment also states that if the 
Department has eliminated the requirement to provide immigration status 
information ``because persons in the U.S. are sometimes unclear as to 
their legal status, then that point further evidences the complexity of 
this system for employees and employers alike.''
    Response: The Department declines to change this definition as 
proposed. The charging party is still required to provide citizenship 
status information, and nothing in the regulations prohibits the 
Special Counsel from requesting additional information, as needed, 
regarding the injured party's immigration status. As discussed in the 
NPRM, immigration status information is not required to determine 
whether the Special Counsel has jurisdiction to investigate an alleged 
unfair immigration-related employment practice, and the Department will 
not require this information to deem a submission to constitute a 
charge under Sec.  44.101(a). The Department does not believe that the 
absence of this information upfront from a charging party will have any 
effect on its ability to properly allocate resources.
    Issue: The Department received a number of comments on the 
definition of charging party in paragraph (b) and its cross reference 
to the ``injured party'' definition in paragraph (i). These commenters 
disagree with the use of the term ``injured party,'' which is defined

[[Page 91776]]

as ``an individual who claims to be adversely affected directly by an 
unfair immigration-related employment practice.'' 28 CFR 44.101(i). The 
commenters state that referring to the person claiming an injury as 
``injured'' before making a determination on the merits of the claim 
``essentially presumes that which must be proven, suggesting an effort 
to write out of the statute the requirement to prove `adverse effect' 
and moving to a `strict liability' standard.'' The commenters believe 
that ``a party should be a `charging party' or an `individual' until 
they have proven that they are `injured.' '' Another commenter believes 
the charging party definition should remain as it is or changed to ``a 
neutral term, such as `claimant' '' in order ``to eliminate the 
impression, even if only subliminally, that an individual filing a 
claim has been `injured.' ''
    Response: The Department disagrees with the commenters' suggestion 
that by simply using the term ``injured party,'' the Department is 
making a judgment on the merits of a claim. ``Injured party'' is 
defined as ``an individual who claims to be adversely affected'' in 
order to avoid any presumption of the merits of the claim. This term 
has also been in the regulations since they were initially promulgated 
in 1987 without impacting the impartiality of the Special Counsel's 
investigations. See Unfair Immigration-Related Employment Practices, 52 
FR 9277 (Mar. 23, 1987) (codified at 28 CFR pt. 44). An ``injured 
party'' may or may not be a ``charging party'' as the statute allows 
that a person acting on behalf of an individual who ``is adversely 
affected directly by an unfair immigration-related employment 
practice'' may also file a charge. 8 U.S.C. 1324b(b)(1). The Department 
declines to make any changes to the definition of ``charging party'' or 
``injured party'' as proposed.
    Issue: The Department received three comments about the definition 
of ``citizenship status'' in paragraph (c). One commenter requests that 
the Department define ``citizenship status'' using a ``flexible 
definition of immigration status'' that includes individuals whose 
status is unclear. Another commenter believes that the Department is 
seeking through this definition to expand the class of individuals 
protected from citizenship status discrimination beyond those who meet 
the ``protected individual'' definition in 8 U.S.C. 1324b(a)(3) to 
include all non-citizens. A third commenter claims that the statute 
provides no basis to include ``immigration status'' in the definition 
of ``citizenship status.'' This commenter also stated that the term 
``immigration status'' is ambiguous and would require human resources 
personnel to be ``immigration law expert[s]'' to determine what it 
means.
    Response: The Department disagrees with these comments and will 
adopt the language of the proposed definition without change. The 
proposed definition does not address the issue of or attempt to modify 
the classes of individuals who are protected from unfair immigration-
related employment practices under the statute. Rather than addressing 
particular immigration statuses, this definition simply makes clear 
that ``citizenship status'' connotes more than just whether an 
individual is or is not a U.S. citizen, and also includes a non-U.S. 
citizen's immigration status. See, e.g., Kamal-Griffin v. Cahill Gordon 
& Reindel, 3 OCAHO no. 568, 1641, 1647 (1993) (``Congress intended the 
term `citizenship status' to refer both to alienage and to non-citizen 
status.''). In addition, understanding what constitutes immigration 
status discrimination does not require human resources personnel to be 
immigration experts. To comply with this law, the employer does not 
need to know the intricacies of a particular immigration status or what 
an individual needs to show to qualify for employment given such a 
status. Rather, if an employer, based on an individual's immigration 
status, treats that individual differently in the hiring, firing, 
recruitment or referral for a fee process, or commits an unfair 
documentary practice, the employer may violate the law. Using an 
example from the NPRM, an employer that refuses to hire a refugee based 
on that person's status as a refugee may well violate section 
1324b(a)(1).
    Issue: The Department received three comments on paragraph (f)'s 
definition of ``for purposes of satisfying the requirements of section 
1324a(b).'' One commenter expresses support for paragraph (f)'s 
definition of ``for purposes of satisfying the requirements of section 
1324a(b)'' as ``a reasonable construction of the statutory language.''
    Two commenters raise concerns that paragraph (f) is overly broad. 
The first commenter believes the statute's prohibition against unfair 
documentary practices is unambiguous and refers only to the Form I-9 
process. This commenter claims that the use of E-Verify does not 
``satisfy the requirements of [section] 1324a(b)'' because the statute 
authorizing E-Verify does not explicitly reference section 1324a(b), 
and therefore discrimination in the use of E-Verify cannot constitute 
an unfair documentary practice under 8 U.S.C. 1324b. This commenter 
further believes that under the definition in the proposed rule, 
employment processes that have nothing to do with satisfying the 
requirements of section 1324a(b) would be covered, such as requesting 
documents as part of vaccination law compliance, tax law compliance, 
and criminal background checks. The second commenter states that 
section 1324b(a)(6) does not cover discrimination involving E-Verify 
because Congress was aware of electronic verification when it amended 
section 1324b in 1996 and chose not to include ``any electronic 
system'' in section 1324b.
    Response: The Department declines to make any change to this 
definition as proposed in the NPRM. As noted in the NPRM, OCAHO has 
recognized that unfair documentary practices can occur outside of the 
actual completion of the Form I-9. For example, discriminatory 
documentary requests at the application stage to verify employment 
eligibility can constitute unfair documentary practices in violation of 
the law. See United States v. Mar-Jac Poultry, Inc., 10 OCAHO no. 1148, 
11 (2012) (recognizing potential liability for unfair documentary 
practices committed against job applicants).
    Discriminatory documentary practices, such as requesting more or 
different documents or rejecting valid documentation, in the E-Verify 
process likewise violate 8 U.S.C. 1324b(a)(6). The E-Verify process 
flows from and is inextricably intertwined with 8 U.S.C. 1324a(b), and 
E-Verify's primary purpose is to assist employers with confirming an 
individual's work authorization status once the individual and the 
employer have completed the Form I-9 as required by 8 U.S.C. 1324a(b). 
Contrary to one commenter's assertion, the E-Verify statute, found at 8 
U.S.C. 1324a note, explicitly references 8 U.S.C. 1324a(b) in several 
places. See, e.g., 8 U.S.C. 1324a note, secs. 403(a)(2)(A); 
403(a)(2)(B)(ii); 403(a)(4)(A); 403(b)(2)(A); 403(b)(3); 403(b)(4); 
403(c). Moreover, when Congress created several pilot programs in 1996, 
including what would later be named E-Verify, Congress mandated reports 
at the end of the third and fourth years of the pilot projects to 
assess, among other things, the degree to which these programs ``assist 
in the enforcement of section 274A'' of the INA. 8 U.S.C. 1324a note, 
Sec. 405(a)(3). While Congress authorized the electronic program that 
would be later named E-Verify at the same time that it last amended 
section 1324b(a)(6), the electronic program did not launch until 1997. 
History and Milestones of the E-Verify Program, U.S. Citizenship and

[[Page 91777]]

Immigration Services, https://www.uscis.gov/e-verify/about-program/history-and-milestones (last updated July 15, 2015). Therefore, it is 
no surprise that Congress did not include a reference to this program 
in the 1996 amendments to section 1324b(a)(6).
    Because an employer's use of E-Verify is inextricably intertwined 
with ``the requirements of section 1324a(b),'' the use of E-Verify is 
covered by the definition. However, to the extent that an employer 
adopts a practice that does not have the purpose of verifying 
employment authorization, such as making document requests for tax or 
vaccination purposes, that practice would fall outside the scope of the 
definition and the law's prohibition against unfair documentary 
practices.
    Issue: Several commenters express concern about the definition of 
``hiring'' at paragraph (h). One commenter claims that this definition 
``would now include an unlimited range of employer activity,'' and that 
``any employer conduct may constitute discrimination (regardless of 
intent) during the pre-hire process.'' This commenter also raises 
concerns that this new definition would interfere with an employer's 
ability to ask applicants general questions about eligibility to work 
in the United States and to ask questions associated with a post-hire 
background check, including asking an applicant to identify the 
applicant's country of origin, present an identification document from 
the applicant's country of origin, or respond to questions about issues 
that arise in the background check.
    One commenter raises a concern that the proposed definition is so 
broad that it would ``require every person working for a single 
employer to be a Form I-9 expert'' and suggests that the proposed 
definition would expand liability for employers based on the acts of 
those who are not ``decision maker[s],'' using, as one example, an 18-
year old assembly line worker who tells his sibling that his employer 
is hiring and to ``go to the office'' and ``bring your license, social 
security card and green card.''
    Other commenters criticize the definition's inclusion of 
``recruitment'' and ``onboarding.'' These commenters cite to United 
States v. Mar-Jac Poultry, Inc., 10 OCAHO no. 1148, 11 (2012) and Mid-
Atlantic Reg'l Org. Coal. v. Heritage Landscape Servs., 10 OCAHO no. 
1134, 8 (2012), as support for a narrower definition of ``hiring'' that 
would include only ``the entire selection process.'' The commenters 
argue that there is only one reference to ``recruitment'' in both 8 
U.S.C. 1324a and 8 U.S.C. 1324b, namely, ``recruitment or referral for 
a fee,'' and therefore argue that the statute does not apply to a 
prospective employer's pre-hire activity like recruitment. The 
commenters further claim that there is no authority to include 
``onboarding'' processes like training or new employee orientation in 
this definition.
    Response: The Department declines to make any changes to this 
definition as proposed in the NPRM. Nevertheless, based on comments 
received, the Department offers further clarification below. The 
Department's proposed definition of ``hiring'' is in line with OCAHO 
case law and the Special Counsel's longstanding position that 
discrimination at any point in the hiring process can violate the 
statute. At the outset, an employer that asks all applicants whether 
they are eligible to work would not violate the statute because there 
would be no differential treatment based on citizenship status or 
national origin. As a result, and contrary to one commenter's concern, 
this proposed definition would not affect an employer's ability to ask 
all job applicants about eligibility to work in the United States.
    The Department further disagrees that this definition imputes any 
liability to an employer for acts of employees that could not already 
be imputed to an employer under the statute, regulations in effect 
today, and relevant case law. The question of when an employer is 
liable for the acts of its employees is very fact-specific and is not 
addressed by this proposed definitional change.
    Although the Department agrees that recruitment as used in 
paragraph (h) could not include ``recruitment for a fee,'' the 
Department distinguishes between ``recruiting'' that occurs in the 
process of hiring an individual and ``recruiting for a fee'' as used in 
the statute. While recruitment by an employer is the act of soliciting 
applicants and applications, recruiting for a fee involves a third 
party soliciting applicants as a paid service to an employer. The 
Department believes that an employer soliciting applicants and 
applications must be included in the definition of ``hiring'' because 
such recruiting activity is an integral part of the selection process. 
Recruiting may impact, and in some cases determine, who learns about 
the job vacancy, who applies for a position, and who is selected for a 
position. Including recruiting in the definition of ``hiring'' is also 
supported by OCAHO case law. See, e.g., Mid-Atlantic Reg'l Org. Coal., 
10 OCAHO no. 1134 at 8 (noting that section 1324b ``specifically 
applies to recruitment for employment as well as to hiring''). Finally, 
the statute's explicit reference to ``recruitment for a fee'' by a 
third party does not mean that an employer's hiring efforts cannot 
encompass both recruitment of and selection of prospective employees.
    The definition of ``hiring'' must also include the onboarding 
process to capture all of the steps necessary to select individuals and 
place them in positions to work. Employers vary widely in their 
terminology, practices, and views regarding what steps are necessary to 
complete the selection process. For instance, some employers make a job 
offer, which the employee accepts, but which is conditioned implicitly 
or explicitly on meeting other requirements like passing drug tests, 
completing a formal application, or completing the Form I-9. This 
``selection'' of a candidate is only tentative; it is not final because 
it is conditioned on the completion of other tasks.
    Including onboarding in the definition of ``hiring'' would ensure 
that all these steps to place an individual in a position to start work 
are covered by the statute. For instance, the definition would capture 
such practices as discriminatory background checks that may occur after 
a conditional offer is made and accepted, but before actual employment 
begins. To the extent that employers impose background checks on new 
hires in a discriminatory manner based on citizenship status or 
national origin, this could violate the law. Finally, an employer that 
requests documentation as part of the background check process as a 
proxy for verifying authorization to work based on a worker's 
citizenship status or national origin, may violate the statute's 
prohibition against discrimination in hiring, in addition to the 
prohibition against unfair documentary practices.
    This view is consistent with OCAHO case law, which has ``long held 
that it is the entire selection process, and not just the hiring 
decision alone, which must be considered in order to ensure that there 
are no unlawful barriers to opportunities for employment.'' Id. For 
instance, in United States v. Townsend Culinary, Inc., 8 OCAHO no. 
1032, 454, 510-11 (1999), OCAHO found that discrimination in the 
employment eligibility verification process (which occurred at the 
onboarding stage) violated not only the statute's prohibition against 
unfair documentary practices but also the statute's general prohibition 
against discrimination in hiring, firing, and recruitment or referral 
for a fee under 8 U.S.C. 1324b(a)(1).
    Issue: The Department received one comment on the definition of 
``more or different documents than are required under such section'' in 
paragraph (j).

[[Page 91778]]

This commenter believes that the statute does not provide support for 
the definition's inclusion of ``any limitation on an individual's 
choice of acceptable documentation to present to satisfy the 
requirements of 8 U.S.C. 1324a(b).'' This commenter also believes the 
definition is confusing because Form I-9 rules already impose 
limitations on which documents individuals completing the Form I-9 may 
present. The commenter further raises the example of E-Verify's 
requirement that an individual who chooses to show a List B document 
for the Form I-9 for an employer that uses E-Verify can only show a 
List B document that contains a photo.
    Response: The Department disagrees with this comment and is 
adopting the definition as the Department proposed with no change. For 
the reasons discussed in the NPRM, OCAHO case law supports the reading 
of the statute reflected in this definition, and the Special Counsel's 
longstanding position has been that discriminatory requests for 
specific documents violate the statute. See, e.g., Townsend Culinary, 
Inc., 8 OCAHO no. 1032 at 507; United States v. Strano Farms, 5 OCAHO 
no. 748, 206, 222-23 (1995); United States v. Beverly Ctr., 5 OCAHO no. 
762, 347, 351 (1995); United States v. A.J. Bart, Inc., 3 OCAHO no. 
538, 1374, 1387 (1993); see also United States v. Zabala Vineyards, 6 
OCAHO no. 830, 72, 85-88 (1995) (holding, prior to the enactment of 
IIRIRA, that 8 U.S.C. 1324b(a)(6) did not prohibit an employer's 
request for specific documents ``in the absence of evidence that . . . 
aliens but not other new hires were required to rely on and produce 
specific documents'').
    Regarding the comment that the definition is confusing in light of 
existing limitations on the documents individuals can provide, the 
examples the commenter provides do not involve an employer imposing a 
limitation based on an individual's citizenship status or national 
origin. The fact that Form I-9 rules impose, as the commenter states, 
``limitation[s] on the documents that may be presented'' does not 
implicate a specific discrimination concern. In the commenter's example 
involving an E-Verify user, if an employer specifies that a worker who 
wishes to show a List B document can only show a List B document with a 
photo based on the employer's use of E-Verify, and applies this E-
Verify obligation consistently regardless of its workers' citizenship 
status or national origin, the employer would not violate the statute 
because of that specification. However, an employer that imposes 
limitations on the types of valid and acceptable Form I-9 documents a 
worker can present due to the worker's protected class is likely to 
violate the statute.
    Issue: The Department received one comment on the definition of 
``protected individual'' in paragraph (k). This commenter raises a 
concern that the definition excludes lawful permanent residents who do 
not apply for naturalization within six months of the date the lawful 
permanent resident first becomes eligible.
    Response: The Department will not make the change proposed by the 
commenter because the definition of ``protected individual'' comes 
directly from the statute at 8 U.S.C. 1324b(a)(3), and only Congress 
can change the meaning of ``protected individual.'' However, the 
Department is modifying the definition of ``protected individual'' to 
make the regulatory language mirror the statutory language by adding 
the words ``granted the status of'' to paragraph (k)(3).
    Issue: One commenter expresses support for the definition of 
``recruitment and referral for a fee'' in paragraph (l) and also asks 
the Department to clarify that ``the exclusion of union hiring halls 
applies to'' this definition ``in the same manner as [the exclusion] 
applies to the parallel phrases in 8 CFR 274a.1(d) & (e).''
    Response: The Department agrees with the commenter that the 
definition at paragraph (l) as proposed excludes union hiring halls. 
This definition has the same meaning as ``recruit for a fee'' and 
``refer for a fee,'' respectively, in 8 CFR 274a.1, and those 
definitions expressly exclude union hiring halls as well.
    Issue: One commenter requests that the Department add a definition 
to the rule to ``clarify that [section 1324b of] the INA protects all 
work authorized individuals from unfair documentary practices.'' This 
commenter believes the proposed rule ``does not adequately guard all 
work-authorized individuals from unfair documentary practices.'' The 
commenter states that while there is a conflict in the case law on this 
issue, it believes that ``the more persuasive cases hold that the 
prohibition on document abuse, 8 U.S.C. 1324b(a)(6), extends to all 
work-authorized individuals.''
    Response: The Department declines to add regulatory language 
addressing this issue. The Department notes that the revised rule 
incorporates the amended statutory language found in 8 U.S.C. 
1324b(a)(6).

Charge Processing

    Issue: A number of commenters raise concerns about paragraph (d) of 
Sec.  44.301,which allows a 45-day period for a charging party to 
provide requested information to allow the Special Counsel to determine 
whether to deem what is initially an inadequate submission a charge. 
Some commenters believe that there is no statutory support for the use 
of such a grace period, pointing to what the commenters believe are 
``specific and relatively strict filing deadlines.'' Another commenter 
claims that the proposed revision would ``in practice all but 
eliminate'' the 45-day period because the Special Counsel could proceed 
to investigate while waiting for the missing information even if the 
individual never provides the information.
    Response: The Department disagrees with these comments and is 
adopting the language as the Department proposed with no changes. The 
Department agrees with commenters that the statute requires that the 
charging party file a charge within 180 days of the alleged unfair 
immigration-related employment practice. However, the statute also 
gives the Attorney General broad discretion to determine what 
information is necessary to constitute a charge. 8 U.S.C. 1324b(b)(1) 
(``Charges shall be in writing under oath or affirmation and shall 
contain such information as the Attorney General requires.''). Pursuant 
to the authority granted in 8 U.S.C. 1324b(b)(1), the Attorney General 
has provided several ways a charging party can meet its charge filing 
obligations. First, a charging party can timely file a charge that on 
its face satisfies the definition of ``charge'' at Sec.  44.101(a). 
Second, a charging party can file a submission that is ``inadequate to 
constitute a complete charge as defined in Sec.  44.101(a)'' but then 
provide additional information to make the charge ``complete.'' Section 
44.301(d)(1) and (d)(2). Third, the Special Counsel can deem a 
submission to ``be a complete charge even though it is inadequate to 
constitute a charge as defined in Sec.  44.101(a).'' Section 44.301(e). 
As long as the initial submission is timely, nothing in the statute 
prevents the Attorney General from later deeming the submission to be a 
charge.
    The Department's regulations on the handling of inadequate 
submissions are consistent with case law interpreting similar statutory 
language in Title VII. See Edelman v. Lynchburg Coll., 535 U.S. 106, 
109 (2002) (upholding an EEOC regulation that permitted ``an otherwise 
timely filer to verify a charge

[[Page 91779]]

after the time for filing has expired.''). Like section 1324b, Title 
VII contains time limits for filing charges. 42 U.S.C. 2000e-5(e)(1). 
Title VII also contains language nearly identical to the language in 8 
U.S.C. 1324b(b)(1). 42 U.S.C. 2000e-5(b) (``Charges shall be in writing 
under oath or affirmation and shall contain such information and be in 
such form as the Commission requires.''). Like the Department, the EEOC 
has promulgated regulations governing what information is required to 
file a charge. See 29 CFR 1601.12(a) (laying out information to be 
contained in a charge); 29 CFR 1601.12(b) (providing that 
notwithstanding the requirements for a charge's contents in paragraph 
(a), a charge can be ``amended'' to ``cure technical defects or 
omissions, including failure to verify the charge, or to clarify and 
amplify allegations made therein'' and that amendments regarding acts 
``related to or growing out of the subject matter of the original 
charge will relate back to the date the charge was first received.''). 
The Supreme Court in Edelman upheld the EEOC's rule regarding charges 
filed under Title VII as ``reasonable.'' 535 U.S. at 114. While the 
Department is adopting regulatory language distinct from that in the 
EEOC's regulations, the same reasoning supports the Attorney General's 
authority to determine the information required for a charge and to 
adopt these regulations regarding charge processing.
    Moreover, the Department's decision to maintain a 45-day grace 
period for submitting additional information promotes certainty and 
finality for respondents and the Special Counsel by using a definite 
timeframe for the charging party to provide the requested information. 
The regulations are necessary to prevent the Special Counsel from 
investigating claims that clearly fall outside of its jurisdiction, 
while at the same time ensuring that timely-filed meritorious 
submissions that may be missing some information can still be 
considered timely. The statute's remedial purpose would be frustrated, 
and meritorious claims would be foreclosed, if the Special Counsel 
imposed a harsh and rigid rule requiring dismissal of timely-filed 
charges that may allege a violation of section 1324b, but that do not 
initially set forth all the elements necessary to be deemed a complete 
charge.
    Issue: One commenter writes in support of Sec.  44.301, which sets 
forth how the Special Counsel handles submissions and charges received 
more than 180 days after the date of alleged discrimination. This 
commenter appears to refer to language in paragraph (g) that provides 
that the Special Counsel shall dismiss charges and submissions received 
more than 180 days after the date of alleged discrimination ``unless 
the Special Counsel determines that the principles of waiver, estoppel, 
or equitable tolling apply.''
    Response: The Department appreciates this comment. As discussed 
more in the NPRM, these principles are well-established in relevant 
administrative decisions. See, e.g., Lardy v. United Airlines, Inc., 4 
OCAHO no. 595, 31, 73 (1994); Halim v. Accu-Labs Research, Inc., 3 
OCAHO no. 474, 765, 779 (1992).
    Issue: The Department received three comments criticizing the 
proposed language in Sec.  44.301(g) regarding the acceptance of 
charges more than 180 days after the alleged violation where principles 
of waiver, estoppel or equitable tolling apply. One commenter objects 
to Sec.  44.301(g)'s lack of express language describing the frequency 
with which the principles of waiver, estoppel, or equitable tolling 
will apply. Another commenter claims that it is ``not appropriate'' for 
the Special Counsel ``to accept late filings at its discretion'' 
because it ``subjects employers to uncertainty and lack of finality.'' 
A third commenter states that these ```equitable' provisions provide 
the Special Counsel with immense leeway to obviate the statutory 180-
day filing deadline'' in section 1324b.
    Response: The Department is satisfied that the explanation provided 
in the preamble and acknowledged by the commenters--that those 
equitable modifications of filing deadlines would be ``sparingly 
applied''--is sufficient. Because the Department will make exceptions 
only rarely, the Department does not agree that this proposed change 
creates the level of uncertainty and lack of finality that outweighs 
the need for flexibility in rare circumstances, such as where the 
charging party's untimely filing was due to circumstances beyond the 
charging party's control. As noted in the response to the previous 
comment, these principles are well-established in relevant 
administrative decisions.

Investigation

    Issue: Some commenters claim that Sec.  44.302 would substantially 
broaden the Special Counsel's investigatory powers without a legal 
basis and in a way that would raise constitutional concerns under the 
Fourth Amendment, all without sufficient explanation as to the reasons. 
These commenters also cite to In re Investigation of Charge of Estela 
Reyes-Martinon v. Swift & Co., 9 OCAHO no. 1058 (2000), to assert that 
the Special Counsel lacks the investigatory power under section 1324b 
to seek written interrogatory answers or to require that respondents 
create evidence not yet in existence. Another commenter claims that 
this new ``broad, sweeping authority'' would allow the Special Counsel 
to ``subpoena anything, in any format, at any time.'' For example, this 
commenter asks whether this would mean that ``employers must now keep 
Forms I-9 for an indefinite period of time,'' a requirement that in 
this commenter's view could violate other federal and state laws.
    Response: The Department disagrees with these comments and is 
adopting the language as proposed with no changes. First, neither the 
law nor the regulations on their face violate the Fourth Amendment. See 
United States v. Salerno, 481 U.S. 739, 745 (1987) (Facial challenges 
are ``the most difficult . . . to mount successfully.''); City of Los 
Angeles v. Patel, 135 S. Ct. 2443, 2450 (2015) (``[C]laims for facial 
relief under the Fourth Amendment are unlikely to succeed when there is 
substantial ambiguity as to what conduct a statute authorizes.''); 
Sibron v. New York, 392 U.S. 40, 59 (1968) (``The constitutional 
validity of a warrantless search is pre-eminently the sort of question 
which can only be decided in the concrete factual context of an 
individual case.''). If a person or entity believes that in a 
particular case the Department is applying the statute or regulations 
in an unconstitutional manner, they may bring an as-applied 
constitutional challenge.
    Second, the Department agrees that while a person or entity being 
investigated must respond to requests for information and also respond 
to requests for documents that already exist, the person or entity is 
not required to otherwise create new documents or to provide documents 
in a format that does not exist at the time of the subpoena. For 
example, if an employer does not make and retain copies of Form I-9 
documentation, the employer is not obligated to provide copies of Form 
I-9 documentation, nor should it ask its employees to provide a copy or 
present their documentation anew to make copies. However, the 
Department disagrees that the proposed revisions in the NPRM require 
otherwise. Moreover, Department regulations have allowed the Special 
Counsel to propound interrogatories since originally promulgated in 
1987, which is consistent with the Special Counsel's authority to have, 
``in accordance with regulations of the Attorney General[,] . . . 
reasonable access to examine evidence of any

[[Page 91780]]

person or entity being investigated.'' 8 U.S.C. 1324b(f)(2).
    The Department also disagrees with the comment that the Swift 
decision precludes the Special Counsel from propounding 
interrogatories. Although these commenters are correct that the ALJ in 
Swift determined that OCAHO lacked authority to order a party to 
respond to interrogatories propounded by the Special Counsel, 9 OCAHO 
no. 1058 at 14, the ALJ also recognized that the Special Counsel might 
still have the authority to propound interrogatories, id. at 8, 13, and 
also acknowledged that other OCAHO ALJs had ordered respondents to 
comply with subpoenas seeking both documents and answers to 
interrogatories. Id. at 12-13. The ALJ in Swift further acknowledged 
but declined to follow a prior case, In re Investigation of Strano 
Farms, in which a different ALJ held that ``the fact that the evidence 
sought in the subpoena at issue does not currently exist in documentary 
form does not invalidate the subpoena in question.'' 3 OCAHO no. 521, 
1217, 1223 (1993). Because Swift concerned OCAHO authority, not the 
Special Counsel's authority, and in light of the conflict in case law, 
the Department does not believe Swift is determinative on this issue. 
The Department is relying on the broad authority under 8 U.S.C. 
1324b(f)(2) and OCAHO case law that supports the Special Counsel's 
ability to propound interrogatories and, when necessary, seek a 
subpoena to obtain answers. This is in accord with the Special 
Counsel's current practice of requesting both documents and information 
during investigations and obtaining a subpoena from OCAHO as necessary 
to ensure that the Special Counsel receives needed information and 
documents.
    Third, regarding concerns on Form I-9 retention requirements, while 
an employer being investigated is obligated to maintain potentially 
relevant documents, which would include Forms I-9, other employers are 
subject only to the general retention requirements in section 1324a and 
any other federal, state or local record retention obligations 
(including any preservation requirements under other investigations/
suits).
    Issue: One commenter questions why the Department has sought to 
codify a respondent's preservation obligations in Sec.  44.302(d), 
asserting that the proposed document retention provisions ``are overly 
vague, confusing, and unnecessary.'' In particular, the commenter said 
that ``[t]he proposal gives little guidance to employers concerning how 
they are to determine what evidence is `potentially relevant' to an 
allegation or how to apply that `potentially relevant' formulation.''
    Response: The Department disagrees with this commenter's suggested 
conclusions but is providing here additional explanation for the 
proposals. OCAHO has acknowledged that an employer is on notice of its 
obligation to preserve potentially relevant evidence when it receives 
notice of a charge filed against it under section 1324b. See Sefic v. 
Marconi, 9 OCAHO no. 1123, 13-14 (2007). In Sefic, OCAHO cited to 
Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 372 (1977), for the 
proposition that ``unlike a litigant in a private suit who may get 
notice only when a complaint is filed, a Title VII defendant gets 
notice of the possibility of a suit when the charge is served.'' Sefic, 
9 OCAHO no. 1123 at 14. Paragraph (d) reflects this obligation. 
Moreover, the paragraph applies the preservation obligation to any 
alleged unfair immigration-related employment practice, meaning that 
the respondent has notice of the alleged violation(s) that the Special 
Counsel is investigating.
    What constitutes ``potentially relevant'' evidence will vary 
depending upon the scope of the Special Counsel's investigation and the 
evidence the employer has. In the context of an investigation by the 
Special Counsel, potentially relevant evidence will often include 
evidence relating to a person or entity's recruiting, hiring, 
employment eligibility verification, and firing policies and practices. 
As with other types of employment discrimination claims, this may 
commonly include job applications, personnel records, a person or 
entity's policies, and applicant flow information. Potentially relevant 
evidence under section 1324b will also include Forms I-9 along with any 
attachments, and E-Verify information. The Department notes that these 
examples are merely illustrative and by no means reflect the universe 
of what can be considered potentially relevant to an investigation by 
the Special Counsel. After considering the public comments, the 
Department is adopting this paragraph as it was proposed.

Authority To File OCAHO Complaints

    Issue: Several commenters disagree with the proposed revision to 
Sec.  44.303(d) regarding the timeframe for the Special Counsel to file 
a charged-based complaint with OCAHO. One of these commenters raises a 
concern that the Department is attempting to extend the applicable 
statute of limitations for the Special Counsel to file a complaint, 
rather than clarifying existing statutory limitations. This commenter 
believes this proposed revision will cause investigations under this 
law to go ``in perpetuity'' and that the timeframe to file a complaint 
would be ``excessive and unreasonable.'' The commenter further believes 
this change will promote abusive and costly litigation and asks the 
Department to reconsider. A different commenter disagrees with the 
Department's interpretation of the statutory language, reading the 
statute to limit the Special Counsel to filing a complaint by the end 
of the additional 90-day period during which the Special Counsel 
continues to have the right to investigate the charge and file a 
complaint. Another commenter states that this proposed revision is 
``extremely burdensome and disruptive to employers.'' A different 
commenter states that ``this puts employers in the position of having 
to potentially wait years to know whether a claim will be pursued.''
    Response: The Department declines to make any changes to Sec.  
44.303(d) as proposed because the proposed revision makes no change to 
the applicable statutory time limits for charge-based complaints filed 
by the Special Counsel and is consistent with case law under both this 
law and a similar provision in Title VII. See, e.g., United States v. 
Agripac, Inc., 8 OCAHO no. 1028, 399, 404 (1999); United States v. Gen. 
Dynamics Corp., 3 OCAHO no. 517, 1121, 1156-57 (1993); Occidental Life 
Ins. Co. of Calif. v. EEOC, 432 U.S. 355, 361 (1977). As noted in the 
NPRM, the proposed revisions simply clarify that the Special Counsel is 
not bound by the statutory time limits for filing a complaint that are 
applicable to private actions. Moreover, the Department does not 
anticipate any significant changes to the speed with which it handles 
its investigations, and any costs that employers incur as a result of 
protracted litigation exist regardless of this proposed revision. For 
the reasons discussed in the NPRM, the Department believes this 
proposed revision is appropriate.
    Issue: A number of comments address the proposed revision to Sec.  
44.304(b) regarding the timeframe for the Special Counsel to file a 
complaint with OCAHO based on an investigation opened at the Special 
Counsel's initiative. One commenter expresses support for the proposed 
revision, stating that ``[i]t is in the interest of all parties--
employers, employees, and OSC--if this filing deadline is removed so 
that OSC can thoroughly and accurately investigate a case before 
formally filing a case against an employer.'' This commenter also 
states that ``nothing in the Immigration and

[[Page 91781]]

Nationality Act . . . provides for a filing deadline for these cases'' 
and ``[t]he [EEOC], a sister federal agency that protects against 
employment discrimination, has no similar filing deadline.''
    Several commenters are critical of the proposed revision. Some 
commenters believe ``[t]he Special Counsel's time to bring a complaint 
and the scope of that complaint should be consistent with Congress' 
clear directive in Section 1324b(d)(3).'' These commenters appear to 
believe that because the statute lays out a clear timeframe for filing 
charges, there should be a comparable limit on the timeframe imposed on 
the Special Counsel for filing a complaint. One commenter disagrees 
with the Department's reading of the statute, insisting that it 
requires the Special Counsel to file a complaint within 180 days of the 
discriminatory act. Another commenter argues that the NPRM 
inappropriately relies on Agripac, Inc., 8 OCAHO no. 1028, and General 
Dynamics Corp., 3 OCAHO no. 517, for the proposition that ``the statute 
contains no time limits for an independent investigation.'' This 
commenter similarly dismisses the Department's reliance on Occidental 
Life Insurance, 432 U.S. 355. Other commenters point to the original 
regulatory text as support for why the Department cannot revise that 
regulatory text to align more closely with the statutory text.
    Response: The Department declines to make any change to Sec.  
44.304(b) as proposed. As discussed in the NPRM, the most reasonable 
application of 8 U.S.C. 1324b(d)(3), which specifies that ``[n]o 
complaint may be filed respecting any unfair immigration-related 
employment practice occurring more than 180 days prior to the date of 
the filing of the charge with the Special Counsel,'' is that the 
Special Counsel may not file a complaint unless the Special Counsel 
opened an investigation on the Special Counsel's own initiative 
pursuant to 8 U.S.C. 1324b(d)(1) within 180 days of the last known act 
of discrimination, as the opening of the Special Counsel's 
investigation is the nearest equivalent to the filing of a charge. This 
reading of the statute is also supported by case law. See United States 
v. Fairfield Jersey, Inc., 9 OCAHO no. 1069, 5 (2001) (acknowledging 
the absence of a statutory time limitation for the filing of a 
complaint arising out of an independent investigation). Furthermore, in 
the NPRM the Department cited to Agripac, General Dynamics Corporation, 
and Occidental Life Insurance when discussing the Special Counsel's 
time limits for filing a charge-based complaint, not--as one commenter 
suggests--when discussing the Special Counsel's time limits for filing 
a complaint based on an independent investigation that the Special 
Counsel opened pursuant to 8 U.S.C. 1324b(d)(1). The Department agrees 
with the commenter that Agripac was not based on an independent 
investigation opened pursuant to 8 U.S.C. 1324b(d)(1). The Department 
cited to Agripac and General Dynamics Corporation in the NPRM for the 
broader proposition that the Special Counsel is not bound by the 
statutory time limits that are applicable to individuals filing private 
actions, and cited to Occidental Life Insurance as instructive given 
the similar charge-filing procedures and virtually identical timetables 
found in Title VII. The Department has considered the view expressed by 
this commenter. However, the Department is not changing its long-held 
interpretation of 8 U.S.C. 1324(d)(3), but rather, is conforming the 
regulatory text to more closely align with the statutory text.
    Issue: Some commenters object more broadly to the clarified time 
limitations for the Department to file a complaint, based on a view 
that the timelines are contrary to public policy. In particular, these 
commenters state that a longer deadline for the Department to file 
complaints would interfere with the availability of witnesses, 
employers' ability to preserve evidence, and witnesses' ability to 
recall the events in question, and would burden employers by requiring 
a longer document retention period. A number of commenters also object 
to the Department's reliance on a five-year limitations period under 28 
U.S.C. 2462 for bringing actions to impose civil penalties.
    Response: The Department will make no changes to its clarified time 
limitations for filing a complaint in either Sec.  44.303(d) or Sec.  
44.304(b) and is adopting these subsections as proposed with no 
changes. These timelines are consistent with the statute and OCAHO case 
law cited in the NPRM and discussed in the prior comment response 
above. In addition, section 1324b is aimed at stopping discriminatory 
practices and providing redress for victims of discrimination. In the 
Department's view, public policy would not be served by imposing time 
limitations on this remedial statute that are unsupported by the 
statutory language. Furthermore, any delays or costs associated with 
protracted litigation exists independent of this proposed revision. 
Finally, the Department's reliance on 28 U.S.C. 2462 for imposing a 
time limit for the Special Counsel to bring an action involving civil 
penalties is not new, but rather, reflects the Department's long-
standing position regarding the outer time limits imposed on the 
Special Counsel. As discussed in the NPRM, similar to the EEOC, the 
Special Counsel is still bound by equitable limits on the filing of a 
complaint. See EEOC v. Propak Logistics, Inc., 746 F.3d 145 (4th Cir. 
2014).

Other Comments

    Issue: Two commenters express support for reforming U.S. 
immigration laws and in particular reforming immigration laws for 
employment-based visas. One commenter raised concerns about the wait 
times for beneficiaries of employment-based visas.
    Response: These comments fall outside the scope of this rule. The 
proposed revisions implemented by this final rule do not change U.S. 
immigration laws or the employment-based visa process, including wait 
times. The proposed revisions implement existing law prohibiting 
unlawful employment discrimination based on citizenship status or 
national origin.
    Issue: One commenter raises concerns about the Form I-9 employment 
eligibility verification process and asked that ``everyone, federal 
agencies, employers and employees, lawyers, Congress, etc. should 
together establish a timely efficient effective employment verification 
process, or scrap it.''
    Response: USCIS, within DHS, publishes the Form I-9 and 
accompanying guidance and determines which documents are acceptable for 
employment eligibility verification, pursuant to the requirements of 8 
U.S.C. 1324a. This issue falls outside the scope of this rule and the 
Department refers the commenter to USCIS for more information on this 
issue.
    Issue: One commenter seeks guidance on whether an employer may 
refuse to accept for employment eligibility verification purposes a 
driver's license or identification card issued by a state that does not 
have ``citizenship requirements.''
    Response: USCIS publishes the Form I-9 and accompanying guidance 
and determines which documents are acceptable for employment 
eligibility verification. This issue falls outside the scope of this 
rule and the Department refers the commenter to USCIS for more 
information on this issue.
    Issue: One commenter requests guidance on the issue of states 
recognizing other states' driver's licenses and ``certifications'' as 
``valid

[[Page 91782]]

eligibility'' for individuals to obtain licenses in a state where a 
particular immigration status may otherwise disqualify that individual.
    Response: This issue falls outside the scope of this rule and the 
Department refers the commenter to USCIS for more information on this 
issue.

Regulatory Procedures

Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)

    The rule has been drafted and reviewed in accordance with Executive 
Order 12866 (Sept. 30, 1993), and Executive Order 13563 (Jan. 18, 
2011). Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other effects; distributive impacts; and equity). Executive Order 
13563 emphasizes the importance of quantifying both costs and benefits 
(while recognizing that some benefits and costs are difficult to 
quantify), reducing costs, harmonizing rules, and promoting 
flexibility.
    Under Executive Order 12866, the Department must determine whether 
a regulatory action is ``significant'' and, therefore, subject to the 
requirements of the Executive Order and Office of Management and Budget 
(OMB) review. Section 3(f) of Executive Order 12866 defines a 
``significant regulatory action'' as any regulatory action that is 
likely to result in a rule ``that may: (1) Have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) Materially alter the budgetary impacts of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.''
    The Department has determined that the rule is not an economically 
significant regulatory action under section 3(f)(1) of Executive Order 
12866 because the Department estimates that its annual economic impact 
will be a one-time, first-year-only cost of approximately $28.0 
million--far less than $100 million. The Department has quantified and 
monetized the costs of the rule over a period of 10 years (2017 through 
2026) to ensure that its estimate captures all major benefits and 
costs, but has determined that all quantifiable costs will be incurred 
only during the first year after the regulation is implemented. Because 
the Department was unable to quantify the benefits of the rule due to 
data limitations, the benefits are described qualitatively.
    The Department considered the following factors when measuring the 
rule's impact: (a) Employers familiarizing themselves with the rule, 
(b) employers reviewing and revising their employment eligibility 
verification policies, and (c) employers and employees viewing training 
webinars. The largest cost is the cumulative costs that employers would 
have to incur to review and revise their employment eligibility 
verification policies, which the Department estimates to be 
$17,858,003. The next largest cost is the cost employers would have to 
incur to familiarize themselves with the rule, which the Department 
estimates to be $10,132,200.
    The economic analysis presented below covers all employers with 
four or more employees, consistent with the statute's requirement that 
a ``person or entity'' have more than three employees to fall within 
the Special Counsel's jurisdiction for citizenship status and national 
origin discrimination in hiring, firing, and recruitment or referral 
for a fee. 8 U.S.C. 1324(a)(2).
    In the following sections, the Department first presents a summary 
of the public comments received on the economic analysis, the 
Department's responses to these comments, and changes made to the 
estimation of the costs of this rule in response to those comments. 
Next, the Department presents a subject-by-subject analysis of the 
costs of the rule. The Department then presents the undiscounted 10-
year total cost ($28.0 million) and a discussion of the expected 
benefits of the rule. Because the costs are incurred entirely in the 
first year, they are not discounted.
    The Department did not identify any transfer payments associated 
with the provisions of the rule. Transfer payments, as defined by OMB 
Circular A-4, are ``monetary payments from one group to another that do 
not affect total resources available to society.'' OMB Circular A-4 at 
38 (Sept. 17, 2003). Transfer payments do not result in additional 
costs or benefits to society.
    In the subject-by-subject analysis, the Department presents the 
labor and other costs for each provision of the rule. Exhibit 1 
displays the labor categories that are expected to experience an 
increase in the level of effort (workload) due to the rule. To estimate 
the cost, the Department multiplied each labor category's hourly 
compensation rate by the level of effort. The Department used wage 
rates from the Mean Hourly Wage Rate calculated by the Bureau of Labor 
Statistics.\1\ Wage rates are adjusted using a loaded wage factor to 
reflect total compensation, which includes health and retirement 
benefits. The loaded wage factor was calculated as the ratio of average 
total compensation to average wages in 2015, which resulted in 1.44 for 
the private sector.\2\ The Department then multiplied the loaded wage 
factor by each labor category's wage rate to calculate an hourly 
compensation rate.
---------------------------------------------------------------------------

    \1\ Bureau of Labor Statistics, December 2015 National 
Occupational Employment and Wage Estimates: United States (Mar. 10, 
2016), http://www.bls.gov/schedule/archives/ecec_nr.htm#2015.
    \2\ The Department calculated average total compensation by 
taking the average of the cost of total compensation for all workers 
in December, September, June, and March of 2015 (($31.70 + $31.53 + 
$31.39 + $31.65)/4 = $31.57), and calculated average wages by taking 
the average of the cost of wages and salaries for those employees in 
each of those four months (($22.14 + $21.98 + $21.82 + $21.94)/4 = 
$21.97). See data retrieved from the BLS data retrieval tool, 
Private Industry Total Compensation for All Occupations and Private 
Industry Wages and Salaries for All Occupations, http://data.bls.gov/cgi-bin/surveymost?cm). (http://www.bls.gov/schedule/archives/ecec_nr.htm.) The Department then calculated the loaded 
wage factor by taking the ratio of average total compensation to 
average total wages ($31.57/$21.97 = 1.44).

[[Page 91783]]



                               Exhibit 1--Calculation of Hourly Compensation Rates
----------------------------------------------------------------------------------------------------------------
                                                                                                      Hourly
                            Position                                  Average       Loaded wage    compensation
                                                                   hourly  wage       factor           rate
                                                                               a               b       c = a x b
----------------------------------------------------------------------------------------------------------------
Human Resources Manager.........................................          $56.29            1.44        $81.0576
Attorney........................................................           65.51  ..............         94.3344
----------------------------------------------------------------------------------------------------------------

1. Public Comments on Regulatory Assessment and Department Responses
    This section discusses public comments to the economic analysis 
that accompanied the proposed rule, the Department's responses to those 
comments, and changes made to the estimation of costs of this rule in 
response to those comments.
    The Department received 24 comments related to the economic 
analysis accompanying the proposed rule. However, 18 of these comments 
had similar, although not identical, text. The remaining six comments 
presented unique input on the economic analysis.
a. Comments Regarding the Number of Employers Affected by the Rule
    Many commenters disagreed with the methodology included in the 
economic analysis for estimating the number of impacted employers. The 
commenters indicated that the Department has underestimated the number 
of impacted employers because it used a basis of the number of 
organizational members of the Council for Global Immigration (CFGI) and 
the Society for Human Resource Management (SHRM), totaling 56,685 
firms. The commenters suggested using data from the U.S. Census of 
Business, compiled by the Office of Advocacy of the U.S. Small Business 
Administration (SBA), which shows that there were 2,182,169 firms with 
more than four employees in 2012, the most recent year for which the 
data is available.
    Relying on 2012 U.S. Census Bureau data, one commenter indicated 
that 3,916,991 employers with at least five employees should be 
included in the analysis. The commenter stated that it is not 
reasonable to limit the analysis to organizations with developed human 
resources practices because, regardless of whether an organization has 
developed human resources practices, it can be held accountable for 
unfair immigration-related unfair employment practices.
    One commenter asserted that the number of organizational members of 
CFGI and SHRM should not be the basis for the number of impacted 
employers because those associations do not represent the entire 
universe of employers with developed human resource practices, which is 
equal to approximately 2 million employers.
    For purposes of calculating rule familiarization costs, one 
commenter stated that firms with fewer than four employees should be 
included because these firms will have to familiarize themselves with 
the rule to figure out its scope and how changes to their business 
would impact the applicability of the rule.
    For purposes of calculating the costs to review and revise existing 
policies, procedures, and management training materials, one commenter 
indicated that either the SBA data on covered employers should have 
been used (i.e., 2,182,169 firms) or the Department should have taken 
the readily available information from USCIS about employers using the 
E-Verify system (more than 600,000 employers) to estimate better the 
number of employers likely to have some formal employment eligibility 
verification policy.
    The Department does not agree that all employers covered by the law 
should be included to estimate the costs of the rule, nor does the 
Department agree that all E-Verify employers or all employers with 
fewer than four employees should be included. The revisions to the 
current regulations are meant to clarify obligations that employers 
already have under the statute and current regulations, and do not 
impose new burdens for compliance.
    The number of employers that will be impacted by the revisions to 
the current regulations is limited to those employers that have 
sufficiently detailed policies for avoiding discrimination under 
section 1324b such that the revisions will require them to review and 
update their policies. Many E-Verify and other employers may have basic 
policies in place for the proper administration of the Form I-9 and E-
Verify processes, and many employers may have anti-discrimination 
policies concerning hiring and firing. In the Department's experience 
investigating discrimination claims, however, and in the Department's 
experience educating employers through its hotline and other training 
opportunities, few employers already have policies in place governing 
how to avoid the types of discrimination covered by section 1324b. In 
the Department's experience, even fewer employers already have policies 
that describe information about the Special Counsel's complaint-filing 
deadlines, charge-filing procedures, and definitions of statutory 
terms, as this type of information does not typically relate to the 
duties of human resources professionals, which are at the heart of the 
revisions.
    Accordingly, the Department estimates that very few employers--
including E-Verify employers--have employment policies so detailed that 
they will require revisions to their policies. Within the small group 
of employers that have detailed discrimination policies that describe 
employer obligations under section 1324b, a smaller number of employers 
may include the name of the office that enforces this statute in their 
written policies. Similarly, in the Department's experience, very small 
employers--those with fewer than four employees--are least likely to 
have developed policies relating to discrimination under section 1324b 
in part because their size makes it much less likely that they employ a 
full-time human resources professional dedicated to developing and 
implementing policies, but also because section 1324b clearly limits 
jurisdiction for discrimination in hiring, firing, and recruitment or 
referral for a fee to employers with four or more employees.
    The Department also disagrees that the appropriate number of 
employers is the number of E-Verify users because, in the Department's 
experience regularly educating and working with these employers, E-
Verify employers are not necessarily more likely to have detailed 
written policies relating to section 1324b that will require any 
updates based on the revisions made to the existing regulations.

[[Page 91784]]

b. Comments Regarding the Methodology for Estimating the Number of 
Organizations Represented Among CFGI and SHRM Membership
    To determine the number of employers affected by the rule, the 
analysis assumed that the same ratio of organizational members to 
individual members existed for CFGI and SHRM. A commenter stated that 
it is not accurate to assume that the ratio of CFGI individual contacts 
to organizational members is the same as the ratio of SHRM individual 
members to the number of organizations that employ them. The commenter 
asserted that the more accurate estimate of the number of organizations 
represented in SHRM's membership is 125,000, rather than 56,455 
organizations.
    The Department will adopt the number of estimated organizational 
members that SHRM and CFGI provided, which is 125,000. The Department 
believes that the number of organizational members of SHRM and CFGI 
provides the best estimate of the number of employers likely to have 
detailed written policies discussing employer obligations under section 
1324b. The Department reasonably expects that most of the limited 
number of employers that already have policies discussing employer 
obligations under section 1324b will be unlikely to have to make any 
revisions to those policies. The reason for this is that the revisions 
do not impose any new compliance obligations.
    The Department requested membership information from SHRM and CFGI 
before the publication of the NPRM and appreciates receiving that 
information now.
c. Comments Regarding the ``Upfront, One-Time Cost'' Assumption
    A commenter expressed disagreement with the assumption that the 
rule imposes an ``upfront, one-time cost.'' Instead, the commenter 
indicated that in addition to the costs of initial implementation, 
employers will incur legal costs and training costs every time they are 
presented with a unique situation that is not covered by the employer's 
general policy against discrimination, e.g., any acknowledgment of 
citizenship status during the hiring process.
    The Department does not agree that there will be ongoing training 
costs because the costs described by the commenter relate not to 
burdens that are imposed by the revisions to the current regulations, 
but instead relate to the overall burden of compliance. As noted, 
employers have the same obligations under the statute and current 
regulations not to discriminate or retaliate.
d. Comments Regarding the Estimated Costs for Implementation of the 
Rule
    A commenter stated that the Department significantly underestimates 
the number of employees who will be involved in reading, reviewing, and 
making changes to policies by assuming that only one human resources 
manager per employer will do so. The commenter asserted that it is 
almost certain that more people will be involved in making these 
changes, including supervisors and, in many cases, in-house and outside 
counsel. Additionally, the commenter asserted that after changes are 
made, all employees involved in the hiring process will have to be 
brought up to speed, which will necessitate additional training. The 
commenter also asserted that the Department underestimates the amount 
of time required to review the rule, revise policies, and update staff 
on the new regulation and policies. In particular, this commenter 
pointed to the SHRM Knowledge Center five-step process for developing 
human resources policies as instructive for assessing the appropriate 
amount of time needed for an entity to revise current policies based on 
the regulatory changes.
    The Department does not agree that, for most employers, more than 
one staff member needs to be involved in reading, reviewing, and making 
changes to policies as a result of the rule. Although employers may 
have different experiences in implementing HR updates, the Department 
estimates, based on its experience with entities covered by this law, 
that on average, only one individual will be involved in making the few 
if any changes. Instead, it appears that the commenters are concerned 
about reviewing and educating themselves about existing obligations to 
prevent discrimination, which relates to compliance with the law in 
general but not the changes in the rule. For example, employers are 
already prohibited from discriminating in hiring, firing, and 
recruiting or referring for a fee based on citizenship status and 
national origin. Also, employers already must allow each employee to 
choose which valid documentation to provide for employment eligibility 
verification purposes, regardless of citizenship status or national 
origin. If an employer decides to create a new policy explaining those 
obligations and train its staff accordingly, these costs are not tied 
to changes promulgated in this rule but instead to obligations that 
have existed since at least 1996 and in some cases 1986.
    The Department does not agree that additional training is required 
for the changes promulgated through this rule because relatively few 
employers have sufficiently detailed policies that would be impacted by 
revisions to the current regulations.
    Although the Department recognizes that employers may have 
different practices, the Department does not believe, based on its 
experience with covered entities, that, in general, more than one-and-
a-half hours is required to review the new rule and update policies 
that require revisions. In the Department's view, the five-step process 
cited by one commenter for developing human resources policies would 
not apply in this context. The first step in the five-step process, 
which is ``identifying the need for a policy,'' is inapplicable because 
an entity should be assessing the need for a policy based not on these 
regulatory changes but based on the entity's legal obligations required 
by statute. Likewise, the second step, ``determine policy content,'' 
would flow not from these regulatory revisions but from the statute. 
The Department similarly disagrees that steps three and four--obtaining 
stakeholder support and updating staff about the regulatory changes--
should be factored into this calculation, as staff seeking to comply 
with their statutory and current regulatory obligations would not need 
to be updated on these types of regulatory revisions and, as discussed 
throughout this rule, the revisions to the regulations create no new 
obligations. While the fifth step, which involves updating and revising 
the policy, may apply in some instances, the Department has accounted 
for this in its assessment of one-and-a-half hours for reviewing and 
revising policies.
e. Comments Regarding the Estimated Cost for Training
    A commenter stated that the estimated training costs are based on 
untenable assumptions. Specifically, the commenter expressed 
disagreement that only 347 people would receive the training. Instead, 
the commenter indicated that it should be assumed that one employee for 
each of the affected employers would take the one-hour training. Also, 
the commenter stated that the training cost component will not be a 
one-time cost item but, instead, will be a recurring cost as new or 
replacement managers are hired. Additionally, the formation of new 
employer companies will trigger future additional training costs. 
Similarly,

[[Page 91785]]

another commenter stated that the Department fails to account for the 
significant staff time that will be required to ensure that those 
involved in the hiring process are aware of the new regulation and 
policies and, therefore, underestimates the training cost of this rule 
``by many orders of magnitude.''
    The Department does not agree with the assertions by these 
commenters and has already addressed three of these four issues above 
in responses to other comments. In response to concerns about training 
costs to new employers, the Department also does not agree that the 
formation of new employers requires additional costs. When an employer 
is formed, the employer should learn of its obligations under various 
employment, labor, and other laws, but the changes promulgated through 
this rule likely have no effect on new employers because they do not 
alter employers' core obligations to comply with section 1324b, and any 
training on these obligations would have occurred anyway--regardless of 
this rules' changes to the current regulations. For example, learning 
about the name of the office that enforces section 1324b is less 
critical than an employer learning about its core statutory obligations 
not to discriminate. A new employer would have no need to revise any 
policies to reflect the narrow changes in this rule because the 
employer could simply prepare a policy that incorporates longstanding 
obligations not to discriminate unlawfully based on citizenship status 
or national origin, and not to retaliate. In response to concerns that 
the training cost is a recurring cost as new or replacement managers 
are hired, the Department does not agree. For the same reasons that a 
new employer would not incur costs flowing from the changes to the 
regulations, a new or replacement manager would need training on the 
employer's core obligations to comply with section 1324b and not 
training to understand the changes between the previous and current 
regulations.
f. Comments Regarding Specific Costs Not Accounted for in the Economic 
Analysis
    A commenter stated that the Department does not account for (1) 
increases in legal fees and penalties for defending discrimination 
claims due to the new regulation, or (2) additional costs for document 
retention employers will incur due to changes in the statute of 
limitations for the Special Counsel to file a charge.
    The Department does not agree that there is sufficient basis for 
the assertion that the revisions will cause an increase in legal fees 
and penalties. The revisions make no change to the applicable statutory 
time limits for charge-based complaints filed by the Special Counsel 
and are consistent with case law under both this law and Title VII. 
Moreover, the Department does not anticipate any significant changes to 
the speed with which it handles its investigations, and any costs that 
employers incur as a result of protracted litigation exist regardless 
of this revision.
    Moreover, the Department currently extends investigation times 
through stipulations with respondents and, when needed, by seeking 
leave from the Office of the Chief Administrative Hearing Officer 
(OCAHO). Finally, the Special Counsel has filed nine lawsuits in the 
last five years combined and has entered into a total of 100 
settlements during that same period. Thus, a relatively small number of 
employers are affected by litigation costs, and these employers have no 
basis to expect that the revisions would increase the level of 
litigation. If anything, the revisions would better assist employers in 
understanding the case law that is reflected in the revisions, helping 
them to comply with the law and avoid litigation altogether. Moreover, 
the Department makes many free resources available to employers to 
assist them with compliance, including (1) a public Web site containing 
an employer tab with over 20 employer guidance documents, a frequently 
asked questions section, free educational videos, and technical 
assistance letters; (2) a toll-free employer hotline; and (3) free 
hardcopy educational materials distributed in many forums.
    Employers investigated by the Special Counsel already have document 
retention requirements, and the revisions do not change those 
requirements. Those requirements end once a matter is resolved, after 
the conclusion of any monitoring period, which ordinarily takes two to 
three years. Employers that are not subject to an investigation by the 
Special Counsel would continue to operate under their existing 
retention policies. The commenters did not provide estimates for these 
additional retention requirements.
g. Other General Comments on the Economic Analysis
    A few commenters stated that the NPRM does not satisfy the 
requirements of the Regulatory Flexibility Act or that it 
underestimates the impacts of the rule on employers. A commenter stated 
that the rule exceeds the $100 million threshold under the Regulatory 
Flexibility Act requirements, arguing that the rule should be further 
analyzed by the Office of Information and Regulatory Affairs within 
OMB. The commenter, however, did not provide an explanation for how the 
commenter arrived at this estimated amount.
    Accordingly, the Department is unable to analyze the specifics of 
the commenter's comment and therefore declines to agree with this 
comment and instead relies upon its own analysis of the economic impact 
of these revisions, and as discussed in responses provided above to 
other comments.
2. Subject-by-Subject Analysis
a. Employers Familiarize Themselves With the Rule
    During the first year of the rule, employers with a developed human 
resources practice will need to read and review the rule to learn about 
the new requirements. The Department determined that no costs will be 
incurred by employers to familiarize themselves with the rule in years 
two through ten because (1) the cost for an existing employer to 
familiarize itself with the rule if it delays doing so until a 
subsequent year is already incorporated into the first-year cost 
calculations; and (2) for employers that are newly created in years two 
through ten, the cost of familiarization is the same as exists under 
the current regulations and, therefore, there is no incremental cost.
    Employers will incur labor costs to familiarize themselves with the 
new rule. To estimate the labor cost of this provision, the Department 
first estimated the number of employers that will need to familiarize 
themselves with the rule by relying on the number of organizational 
members in CFGI and SHRM.\3\ The Department used the number of 
organizational members in these two organizations as a proxy for the 
number of employers with a developed human resources practice that can 
be expected to institutionalize the regulatory changes.
---------------------------------------------------------------------------

    \3\ The Department obtained the estimated number of 
organizational members in CFGI and SHRM, 125,000, directly from 
these two organizations in their comment in response to the economic 
analysis accompanying the proposed rule. The estimated total number 
of employers is 125,000.
---------------------------------------------------------------------------

    The Department then multiplied the estimated number of employers by 
the assumed number of human resources managers per employer, the time 
required to read and review the new rule, and the hourly compensation 
rate.

[[Page 91786]]

The Department estimated this one-time cost to be $10,132,200.\4\
---------------------------------------------------------------------------

    \4\ The Department estimated the cost of this review by 
multiplying the estimated number of employers (125,000) by the 
number of HR managers per employer (1), the time needed to read and 
review the rule (1 hour), and the hourly compensation rate 
($81.0576). This calculation yields a labor cost of $10,132,200.
---------------------------------------------------------------------------

b. Employers Review and Revise Employment Eligibility Verification 
Policies
    The rule will require some employers to revise their employment 
eligibility verification policies. Although under 8 U.S.C. 1324a, all 
U.S. employers must properly complete a Form I-9 for each individual 
they hire for employment in the United States to verify the 
individual's identity and employment authorization, only a subset of 
employers has detailed written policies specifically addressing 
compliance with section 1324b. The Department assumed that these 
employers would be in the practice of saving their policies in an 
electronic format that can be readily modified. For the policy 
revisions, employers will complete a simple ``search-and-replace'' to 
update the agency's name and possibly replace the term ``documentation 
abuse(s)'' with ``unfair documentary practice(s).''
    Only a very limited subset of those employers that have detailed 
written employment eligibility verification policies will need to make 
additional modifications to their policies. The Department estimated 
costs only for those employers that have written employment eligibility 
verification policies and that will review their policies and make 
changes as needed. The time involved will depend on the changes 
employers need to make, whether those changes need to be made to one or 
more documents or resource materials, and how many sections of the 
policy will need to be modified.
    Employers with policies for verifying employment eligibility (and 
possibly employers with hiring or termination policies, even if they 
lack policies for verifying employment eligibility) might conduct a 
front-to-back review of their policies to determine whether any 
additional changes are needed.
    These changes and reviews will represent an upfront, one-time cost 
to employers. The Department estimates this cost as the sum of the cost 
of revising the policies by making word replacements; the cost, for 
some employers, of making additional changes beyond word replacements; 
and the cost of conducting a front-to-back review of the employment 
eligibility verification policies.
    To estimate the labor cost for making word replacements to the 
employment eligibility verification policies, the Department first 
estimated the number of employers that will make these revisions 
because of the rule by relying on the number of organizational members 
in SHRM and CFGI. The Department then multiplied the estimated number 
of employers by the assumed number of human resources managers per 
employer, the time required to make the revisions, and the hourly 
compensation rate.\5\ This calculation yields $2,533,050 in labor costs 
related to revising employment eligibility verification policies in the 
first year of the rule. Dollar values presented in this section may not 
sum because of rounding error.
---------------------------------------------------------------------------

    \5\ To estimate the cost of making revisions, the Department 
multiplied the estimated number of employers (125,000) by the 
assumed number of human resources managers per employer (1), the 
hourly compensation rate ($81.0576), and the time required to make 
the revisions (0.25 hours). This calculation results in a cost of 
$2,533,050.
---------------------------------------------------------------------------

    To estimate the additional cost to those employers making changes 
beyond word replacements in the first year of the rule, the Department 
assumed that 5 percent of employers (i.e., the number of organizational 
members in CFGI and SHRM) will make these changes. The Department then 
multiplied the number of employers that will make these additional 
changes by the assumed number of human resources managers per employer, 
the time required to make the changes, and the hourly compensation 
rate. This calculation yields $126,653 in labor costs in the first year 
of the rule.\6\
---------------------------------------------------------------------------

    \6\ To estimate the cost of making changes beyond word 
replacements, the Department first calculated the number of 
employers that will make these changes. The Department obtained the 
number of employers that will make these additional changes by 
multiplying the number of affected employers (125,000) by the 
assumed percentage of employers that will make these additional 
changes (5%). This calculation yields the number 6,250. The 
Department then multiplied that number of employers (6,250) by the 
number of human resources managers per employer (1), the hourly 
compensation rate ($81.0576), and the time required to make the 
changes (0.25 hours). This calculation results in a cost of 
$126,653.
---------------------------------------------------------------------------

    To estimate the cost of conducting a front-to-back review of the 
policies for verifying employment eligibility (or hiring and 
termination policies), the Department multiplied the number of 
employers (i.e., the number of organizational members in CFGI and SHRM) 
by the number of human resources managers per employer, the time 
required for a review, and the hourly compensation rate. This 
calculation yields $15,198,300 in labor costs in the first year of the 
rule.\7\
---------------------------------------------------------------------------

    \7\ To estimate the cost of reviewing the policies, the 
Department assumed, out of an abundance of caution, that all of the 
employers affiliated with CFGI or SHRM will dedicate one human 
resources manager to conduct a front-to-back review of their 
policies. Accordingly, the Department multiplied the number of 
employers (125,000) by the assumed number of human resources 
managers per employer (1), the hourly compensation rate ($81.0576), 
and the time required to review the policies (1.5 hours). This 
calculation results in a cost of $15,198,300.
---------------------------------------------------------------------------

    In total, the one-time costs to employers to revise policies for 
verifying employment eligibility by making word replacements, to make 
additional changes beyond word replacements for some employers, and to 
conduct a front-to-back review of those policies, are estimated to be 
$17,858,003 ($2,533,050 + $126,653 + $15,198,300) during the first year 
of rule implementation.
c. Employers and Employees View Training Webinars
    To assist employers, employees, attorneys, and advocates in 
understanding the changes resulting from the rule, during the first 
year of implementation, as a part of the Department's ongoing 
educational webinar series, the Department expects to schedule three 
live, optional employer training webinars per month and one live, 
optional advocate/employee training webinar per month. These live one-
hour training webinars will cover the full spectrum of employer 
obligations and employee rights under the statute. The Department also 
expects to create three one-hour recorded webinars: One for employers 
and their representatives and two for employees and their 
representatives (one in English and one in Spanish). All of these 
resources will be accessible, including to persons with disabilities, 
online at no cost to the public including employers. They will be 
accessible remotely and will not require travel. The Department 
anticipates that participation will occur mostly through viewings of 
the one-hour recorded webinars. The recorded training webinars 
developed to explain the post-rule regulatory and statutory obligations 
and rights will eventually replace the Department's existing live 
webinars. Therefore, the Department has calculated these costs for 
employers, employees, and their representatives to be incurred in the 
first year when learning about the changes, whether through a live or 
recorded training webinar. After that, newly-created employers will be 
viewing training webinars instead of (not in addition to) viewing 
current webinars, with no incremental costs incurred. Periodically,

[[Page 91787]]

the Department may update the webinar content in light of legal and 
policy developments, and may publish supplemental educational materials 
for employer and employee audiences on its Web site, including in other 
languages.
    To estimate the cost to employers of viewing training webinars, the 
Department summed the labor costs for those viewing live webinars and 
the labor costs for those viewing recorded webinars. To estimate the 
number of employers viewing the live webinars, the Department used 
statistics on the average number of employer participants in live 
webinars. To estimate the number of employers viewing a recorded 
webinar, the Department used data on the number of viewings of the 
Department's educational videos about employer obligations under 8 
U.S.C. 1324b that are posted on YouTube. Both estimates assume a 15-
percent increase in participation following the implementation of the 
rule.\8\ The Department multiplied the number of employers expected to 
view a webinar (represented by their human resources managers) by the 
hourly compensation rate, the time required to view a webinar, and the 
number of training webinars in the first year for both live and 
recorded webinars. The total one-time cost to employers for viewing 
live and recorded webinars is estimated to be $27,316.\9\
---------------------------------------------------------------------------

    \8\ On average, 44.7 individuals participate in live webinars 
for employers. The Department assumed that there will be a 15-
percent increase in the number of participants following the 
implementation of the rule. Thus, the Department estimated costs for 
seven employers (i.e., 15 percent of the 44.7 individuals) related 
to viewing the live webinar. On average, 567 individuals have viewed 
each of the educational YouTube videos. Thus, the Department 
estimated costs for 85 employers (i.e., 15 percent of the 567 
individuals) related to viewing the recorded webinar.
    \9\ The Department estimated the cost of viewing the live 
webinars by taking the product of the number of employer 
representatives (human resources managers) viewing the live webinar 
(7), the hourly compensation rate ($81.0576), the number of webinars 
per year (36), and the time required to view the webinar (1 hour). 
This yielded a cost of $20,427. The Department then estimated the 
cost of viewing the recorded webinars by taking the product of the 
number of employer representatives (HR managers) viewing the 
recorded webinars (85), the hourly compensation rate ($81.0576), the 
number of webinars (1), and the time required to view the webinar (1 
hour). This yielded a cost of $6,890. The total cost of viewing 
webinars was estimated by taking the sum of the cost of viewing live 
webinars and the cost of viewing recorded webinars, to obtain a 
total cost of $27,316.
---------------------------------------------------------------------------

    To estimate the cost to employees of viewing live training 
webinars, the Department used existing statistics on the average 
participation of employees. To estimate the cost to employees of 
viewing recorded webinars, the Department used the employer-to-employee 
ratio of participation in the live webinars and applied it to the 
number of views of the Department's educational videos on the Web site 
www.YouTube.com. Both estimates assume a 5-percent increase in 
participation following the implementation of the rule.\10\ These 
estimates are based upon only the webinars recorded in English because 
the Department does not expect an increase in the number of views of 
the Spanish webinars following the implementation of the rule. In the 
Department's experience, in many cases the live Spanish webinars that 
have been offered have been canceled due to lack of attendees. In other 
cases, the Spanish webinars proceeded but with a turnout of fewer than 
ten participants, who are typically employees (identified as employees 
by the type of questions they ask or by their registrations with 
personal email addresses). The Department multiplied the number of 
employees expected to view webinars (represented by their attorneys) by 
the hourly compensation rate, the time required to view a webinar, and 
the number of training webinars in the first year for both live and 
recorded webinars. The Department estimates a total and aggregate one-
time cost of $1,887 for viewing live or recorded advocate/employee 
webinars.\11\
---------------------------------------------------------------------------

    \10\ On average, 12 individuals participate in live webinars for 
employees. The Department assumed that there will be a 5-percent 
increase in individuals following the implementation of the rule. 
Thus, the Department estimated costs for one employee (i.e., 5 
percent of the 12 individuals) related to viewing the live webinars. 
On average, 567 individuals viewed the educational YouTube videos. 
The Department assumed the same proportion of employees-to-employers 
viewing the live webinars (0.268 = 12/44.7) will view the recorded 
webinars. This number will translate to 152 employees or employee 
advocates viewing the educational YouTube videos. Thus, the 
Department estimated costs for 8 employees (i.e., 5 percent of the 
152 individuals) related to viewing the recorded webinar.
    \11\ The Department estimated the cost of viewing live webinars 
by taking the product of the number of employee representatives 
(captured by the attorney occupational category) viewing the live 
webinar (1), the hourly compensation rate ($94.3344), the number of 
webinars (12), and the time required to view the webinar (1 hour). 
This resulted in a cost of $1,132. The Department then estimated the 
cost of viewing recorded webinars by taking the product of the 
number of employee representatives, assumed to be an attorney, 
viewing the recorded webinar (8), the hourly compensation rate 
($94.3344), the number of webinars (1), and the time required to 
view the webinar (1 hour). This resulted in a cost of $755. The 
total cost of viewing webinars was estimated by taking the sum of 
the cost of viewing live webinars and the cost of viewing recorded 
webinars, to obtain a total cost of $1,887.
---------------------------------------------------------------------------

    Accordingly, the Department estimates the total one-time cost to 
employers and employees of viewing live and recorded webinars to be 
$29,203 ($27,316 + $1,887).
d. Benefits of the Rule
    The Department was not able to quantify the benefits of the rule 
due to data limitations, particularly the difficulties in calculating 
the amount of time employers will save from the rule. Several benefits 
to society will result, however, from the rule, including the 
following:
    Helping employers understand the law more efficiently. The 
Department projects that the regulatory changes will reduce the time 
and effort necessary for employers to understand their statutory 
obligations by incorporating well-established administrative decisions, 
the Department's long-standing positions, and statutory amendments into 
the regulations.
    Increasing public access to government services. The regulatory 
changes will streamline the charge-filing process for individuals 
alleging discrimination. For example, the criteria needed to satisfy 
the definition of a ``charge'' have been reduced, and members of the 
public can now file charges electronically.
    Eliminating public confusion regarding two offices in the Federal 
Government with the same name. The regulatory changes will reflect the 
change in the name of the office responsible for enforcing 8 U.S.C. 
1324b from the Office of Special Counsel for Immigration-Related Unfair 
Employment Practices to the Immigrant and Employee Rights Section, 
thereby eliminating delays in processing submissions that currently 
occur due to confusion associated with having two Offices of Special 
Counsel in the Federal Government.\12\
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    \12\ In addition to the Office of Special Counsel for 
Immigration-Related Unfair Employment Practices located in the 
Department's Civil Rights Division by 28 CFR 0.53, Congress has 
established an Office of Special Counsel charged with protecting 
employees, former employees, and applicants for employment from 
prohibited personnel practices, among other functions. See 5 U.S.C. 
1211-1212.
---------------------------------------------------------------------------

Regulatory Flexibility Act and Executive Order 13272 (Consideration of 
Small Entities)

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 603, and Executive 
Order 13272 (Aug. 13, 2002), require agencies to prepare a regulatory 
flexibility analysis of the anticipated impact of a regulation on small 
entities. The RFA provides that the agency is not required to prepare 
such an analysis if an agency head certifies, along with a statement 
providing the factual basis for such

[[Page 91788]]

certification, that the regulation is not expected to have a 
significant economic impact on a substantial number of small entities. 
5 U.S.C. 605(b). Based on the following analysis, the Attorney General 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities.
    The Department's analysis focused on small businesses or nonprofits 
with 20 to 499 employees. The Department assumed that small businesses 
or nonprofits with fewer than 20 employees would not have a detailed 
written policy addressing compliance with 8 U.S.C. 1324b.
    The Department assumed that, in total, 125,000 entities will be 
affected by the rule. Of those 125,000 affected entities, the 
Department estimated that 62,500 entities will be small employers.\13\ 
Dividing the affected population (62,500) by the total number of small 
businesses and non-profits (664,094), the Department estimates that the 
rule will impact 9.4 percent of small entities.\14\
---------------------------------------------------------------------------

    \13\ According to the SHRM Web site, approximately 50 percent of 
the organization's members work in organizations with fewer than 500 
employees. See SHRM, About the Society for Human Resource 
Management, http://www.shrm.org/about/pages/default.aspx. Taking 50 
percent of the total estimated number of members in SHRM and CFGI 
(125,000) results in 62,500 small entities.
    \14\ The Department assumed that the total number of small 
businesses and non-profits is equal to the number of firms with 20 
to 499 employees. Because the U.S. Census Bureau did not identify 
the number of firms with 20 to 499 employees in 2013, the most 
recent year for which data is available, the Department calculated 
the estimated number of firms with 20 to 499 employees in that year 
by calculating the number of establishments with 20 to 499 employees 
in 2013 and dividing it by the ratio of small establishments to 
small firms in 2012. To perform that calculation, the Department 
first determined the estimated number of firms with 20 to 99 
employees in 2013 by (1) adding the number of establishments with 20 
to 49 employees in 2013 and the number of establishments with 50 to 
99 employees in 2013 (652,075 + 221,192 = 873,267); (2) dividing the 
number of establishments with 20 to 99 employees in 2012 by the 
number of firms with 20 to 99 employees in 2012 (687,272/494,170 = 
1.39076); and (3) dividing the first number by the second (873,267/
1.39076 = 627,906). The Department then determined the estimated 
number of firms with 100 to 499 employees in 2013 by (1) adding the 
number of establishments with 100 to 249 employees in 2013 and the 
number of establishments with 250 to 499 employees in 2013 (124,411 
+ 31,843 = 156,254); (2) dividing the number of establishments with 
100 to 499 employees in 2012 by the number of firms with 100 to 499 
employees in 2012 (360,207/83,423 = 4.3178); and (3) dividing the 
first number by the second (156,254/4.3178 = 36,188). Last, to 
determine the estimated number of firms with 20 to 499 employees in 
2013, the Department added the estimated number of firms with 20 to 
99 employees in 2013 and the estimated number of firms with 100 to 
499 employees in 2013 (627,906 + 36,188 = 664,094). See U.S. Census 
Bureau, 2013 County Business Patterns (NAICS), http://censtats.census.gov; U.S. Census Bureau, 2012 Statistics of U.S. 
Businesses, Number of Firms, Number of Establishments, Employment, 
Annual Payroll, and Estimated Receipts by Enterprise Employment Size 
for the United States and States, Totals: 2012; http://www.census.gov/econ/susb/historical_data.html.
---------------------------------------------------------------------------

    The Department estimated the costs of (a) familiarizing staff with 
the new requirements in the rule, (b) reviewing and revising their 
employment eligibility verification policy, and (c) viewing a training 
webinar. The analysis focused on the first year of rule implementation 
when all costs of the rule are incurred. The Department estimated that 
the total one-year cost per small employer is $324.\15\ The Department 
has determined that the yearly cost of $324 will not have a significant 
economic impact on any of the affected small entities. Therefore, the 
Department has certified that the rule will not have a significant 
impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \15\ The Department estimated a cost of $324 per small entity by 
taking the sum of the cost per small entity of each of the changes 
to the rule. This includes the following costs: familiarization with 
the rule ($81), revising employment eligibility verification 
policies by making word replacements ($20), making additional 
changes beyond word replacements ($20), conducting a front-to-back 
review of the employment eligibility verification policies ($122), 
and viewing the training webinar ($81).
---------------------------------------------------------------------------

Paperwork Reduction Act

    These regulations contain no information collection requirements 
subject to review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. 8 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

Unfunded Mandates Reform Act of 1995

    For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1532, this rule does not include any Federal mandate that may result in 
more than $100 million in expenditures by State, local, and tribal 
governments in the aggregate or by the private sector.

Executive Order 13132 (Federalism)

    The agency has reviewed this rule in accordance with Executive 
Order 13132 (Aug. 4, 1999), and has determined that it does not have 
``federalism implications.'' This rule will not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.

Executive Order 13175 (Consultation and Coordination With Indian Tribal 
Governments)

    This rule does not have tribal implications under Executive Order 
13175 (Nov. 6, 2000) that will require a tribal summary impact 
statement. The rule will not have substantial direct effects on one or 
more Indian tribes, on the relationship between the Federal Government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

Executive Order 13045 (Protection of Children)

    This rule is not a covered regulatory action under Executive Order 
13045 (Apr. 21, 1997). The rule will have no environmental health risk 
or safety risk that may disproportionately affect children.

Executive Order 12630 (Constitutionally Protected Property Rights)

    This rule does not have takings implications under Executive Order 
12630 (Mar. 15, 1988). The rule will not effect a taking or require 
dedications or exactions from owners of private property.

Executive Order 12988 (Civil Justice Reform Analysis)

    This rule was drafted and reviewed in accordance with Executive 
Order 12988 (Feb. 5, 1996), and will not unduly burden the Federal 
court system. Complaints respecting unfair immigration-related 
employment practices are heard in the first instance by the Department 
of Justice, Executive Office for Immigration Review, Office of the 
Chief Administrative Hearing Officer, with only a miniscule number 
appealed each year to the Federal Circuit Courts of Appeal and an even 
smaller number of subpoenas or orders enforced by Federal District 
Courts.

List of Subjects

28 CFR Part 0

    Authority delegations (government agencies), Government employees,

[[Page 91789]]

Organization and functions (government agencies), Privacy, Reporting 
and recordkeeping requirements, Whistleblowing.

28 CFR Part 44

    Administrative practice and procedure, Equal employment 
opportunity, Immigration.

    For the reasons stated in the preamble, the Attorney General amends 
28 CFR parts 0 and 44 as follows:

PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE

0
1. The authority citation for part 0 continues to read as follows:

    Authority:  5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.


0
2. Section 0.53 is revised to read as follows:


Sec.  0.53   Immigrant and Employee Rights Section.

    (a) The Immigrant and Employee Rights Section shall be headed by a 
Special Counsel for Immigration-Related Unfair Employment Practices 
(``Special Counsel''). The Special Counsel shall be appointed by the 
President for a term of four years, by and with the advice and consent 
of the Senate, pursuant to section 274B of the Immigration and 
Nationality Act (INA), 8 U.S.C. 1324b. The Immigrant and Employee 
Rights Section shall be part of the Civil Rights Division of the 
Department of Justice, and the Special Counsel shall report directly to 
the Assistant Attorney General, Civil Rights Division.
    (b) In carrying out the Special Counsel's responsibilities under 
section 274B of the INA, the Special Counsel is authorized to:
    (1) Investigate charges of unfair immigration-related employment 
practices filed with the Immigrant and Employee Rights Section and, 
when appropriate, file complaints with respect to those practices 
before specially designated administrative law judges within the Office 
of the Chief Administrative Hearing Officer, Executive Office for 
Immigration Review, U.S. Department of Justice;
    (2) Intervene in proceedings involving complaints of unfair 
immigration-related employment practices that are brought directly 
before such administrative law judges by parties other than the Special 
Counsel;
    (3) Conduct, on the Special Counsel's own initiative, 
investigations of unfair immigration-related employment practices and, 
where appropriate, file complaints with respect to those practices 
before such administrative law judges;
    (4) Conduct, handle, and supervise litigation in U.S. District 
Courts for judicial enforcement of subpoenas or orders of 
administrative law judges regarding unfair immigration-related 
employment practices;
    (5) Initiate, conduct, and oversee activities relating to the 
dissemination of information to employers, employees, and the general 
public concerning unfair immigration-related employment practices;
    (6) Establish such regional offices as may be necessary, in 
accordance with regulations of the Attorney General;
    (7) Perform such other functions as the Assistant Attorney General, 
Civil Rights Division may direct; and
    (8) Delegate to any subordinate any of the authority, functions, or 
duties vested in the Special Counsel.

0
3. Revise part 44 to read as follows:

PART 44--UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES

Sec.
44.100 Purpose.
44.101 Definitions.
44.102 Computation of time.
44.200 Unfair immigration-related employment practices.
44.201 [Reserved].
44.202 Counting employees for jurisdictional purposes.
44.300 Filing a charge.
44.301 Receipt of charge.
44.302 Investigation.
44.303 Determination.
44.304 Special Counsel acting on own initiative.
44.305 Regional offices.

    Authority:  8 U.S.C. 1103(a)(1), (g), 1324b.


Sec.  44.100   Purpose.

    The purpose of this part is to implement section 274B of the 
Immigration and Nationality Act (8 U.S.C. 1324b), which prohibits 
certain unfair immigration-related employment practices.


Sec.  44.101   Definitions.

    For purposes of 8 U.S.C. 1324b and this part:
    (a) Charge means a written statement in any language that--
    (1) Is made under oath or affirmation;
    (2) Identifies the charging party's name, address, and telephone 
number;
    (3) Identifies the injured party's name, address, and telephone 
number, if the charging party is not the injured party;
    (4) Identifies the name and address of the person or other entity 
against whom the charge is being made;
    (5) Includes a statement sufficient to describe the circumstances, 
place, and date of an alleged unfair immigration-related employment 
practice;
    (6) Indicates whether the basis of the alleged unfair immigration-
related employment practice is discrimination based on national origin, 
citizenship status, or both; or involves intimidation or retaliation; 
or involves unfair documentary practices;
    (7) Indicates the citizenship status of the injured party;
    (8) Indicates, if known, the number of individuals employed on the 
date of the alleged unfair immigration-related employment practice by 
the person or other entity against whom the charge is being made;
    (9) Is signed by the charging party and, if the charging party is 
neither the injured party nor an officer of the Department of Homeland 
Security, indicates that the charging party has the authorization of 
the injured party to file the charge;
    (10) Indicates whether a charge based on the same set of facts has 
been filed with the Equal Employment Opportunity Commission, and if so, 
the specific office and contact person (if known); and
    (11) Authorizes the Special Counsel to reveal the identity of the 
injured or charging party when necessary to carry out the purposes of 
this part.
    (b) Charging party means--
    (1) An injured party who files a charge with the Special Counsel;
    (2) An individual or entity authorized by an injured party to file 
a charge with the Special Counsel that alleges that the injured party 
is adversely affected directly by an unfair immigration-related 
employment practice; or
    (3) An officer of the Department of Homeland Security who files a 
charge with the Special Counsel that alleges that an unfair 
immigration-related employment practice has occurred or is occurring.
    (c) Citizenship status means an individual's status as a U.S. 
citizen or national, or non-U.S. citizen, including the immigration 
status of a non-U.S. citizen.
    (d) Complaint means a written submission filed with the Office of 
the Chief Administrative Hearing Officer (OCAHO) under 28 CFR part 68 
by the Special Counsel or by a charging party, other than an officer of 
the Department of Homeland Security, alleging one or more unfair 
immigration-related employment practices under 8 U.S.C. 1324b.
    (e) Discriminate as that term is used in 8 U.S.C. 1324b(a) 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.

[[Page 91790]]

    (f) The phrase ``for purposes of satisfying the requirements of 
section 1324a(b),'' as that phrase is used in 8 U.S.C. 1324b(a)(6), 
means for the purpose of completing the employment eligibility 
verification form designated in 8 CFR 274a.2, or for the purpose of 
making any other efforts to verify an individual's employment 
eligibility, including the use of ``E-Verify'' or any other electronic 
employment eligibility verification program.
    (g) An act done ``for the purpose or with the intent of 
discriminating against an individual in violation of [1324(a)(1)],'' as 
that phrase is used in 8 U.S.C. 1324b(a)(6), means an act of 
intentionally treating an individual differently based on national 
origin or citizenship status in violation of 8 U.S.C. 1324b(a)(1), 
regardless of the explanation for the differential treatment, and 
regardless of whether such treatment is because of animus or hostility.
    (h) Hiring means all conduct and acts during the entire 
recruitment, selection, and onboarding process undertaken to make an 
individual an employee.
    (i) Injured party means an individual who claims to be adversely 
affected directly by an unfair immigration-related employment practice.
    (j) The phrase ``more or different documents than are required 
under such section,'' as that phrase is used in 8 U.S.C. 1324b(a)(6), 
includes any limitation on an individual's choice of acceptable 
documentation to present to satisfy the requirements of 8 U.S.C. 
1324a(b).
    (k) Protected individual means an individual who--
    (1) Is a citizen or national of the United States;
    (2) Is an alien who is lawfully admitted for permanent residence, 
other than an alien who--
    (i) Fails to apply for naturalization within six months of the date 
the alien first becomes eligible (by virtue of period of lawful 
permanent residence) to apply for naturalization, or, if later, within 
six months after November 6, 1986; or
    (ii) Has applied on a timely basis, but has not been naturalized as 
a citizen within two years after the date of the application, unless 
the alien can establish that he or she is actively pursuing 
naturalization, except that time consumed in the Department of Homeland 
Security's processing of the application shall not be counted toward 
the two-year period;
    (3) Is granted the status of an alien lawfully admitted for 
temporary residence under 8 U.S.C. 1160(a) or 8 U.S.C. 1255a(a)(1);
    (4) Is admitted as a refugee under 8 U.S.C. 1157; or
    (5) Is granted asylum under 8 U.S.C. 1158.
    (l) Recruitment or referral for a fee has the meaning given the 
terms ``recruit for a fee'' and ``refer for a fee,'' respectively, in 8 
CFR 274a.1, and includes all conduct and acts during the entire 
recruitment or referral process.
    (m) Respondent means a person or other entity who is under 
investigation by the Special Counsel, as identified in the written 
notice required by Sec.  44.301(a) or Sec.  44.304(a).
    (n) Special Counsel means the Special Counsel for Immigration-
Related Unfair Employment Practices appointed by the President under 8 
U.S.C. 1324b, or a duly authorized designee.


Sec.  44.102   Computation of time.

    When a time period specified in this part ends on a day when the 
Federal Government in Washington, DC is closed (such as on weekends and 
Federal holidays, or due to a closure for all or part of a business 
day), the time period shall be extended until the next full day that 
the Federal Government in Washington, DC is open.


Sec.  44.200   Unfair immigration-related employment practices.

    (a)(1) General. It is an unfair immigration-related employment 
practice under 8 U.S.C. 1324b(a)(1) for a person or other entity to 
intentionally discriminate or to engage in a pattern or practice of 
intentional discrimination against any individual (other than an 
unauthorized alien) with respect to the hiring, or recruitment or 
referral for a fee, of the individual for employment or the discharging 
of the individual from employment--
    (i) Because of such individual's national origin; or
    (ii) In the case of a protected individual, as defined in Sec.  
44.101(k), because of such individual's citizenship status.
    (2) Intimidation or retaliation. It is an unfair immigration-
related employment practice under 8 U.S.C. 1324b(a)(5) for a person or 
other entity to intimidate, threaten, coerce, or retaliate against any 
individual for the purpose of interfering with any right or privilege 
secured under 8 U.S.C. 1324b or because the individual intends to file 
or has filed a charge or a complaint, testified, assisted, or 
participated in any manner in an investigation, proceeding, or hearing 
under that section.
    (3) Unfair documentary practices. It is an unfair immigration-
related employment practice under 8 U.S.C. 1324b(a)(6) for--
    (i) A person or other entity, for purposes of satisfying the 
requirements of 8 U.S.C. 1324a(b), either--
    (A) To request more or different documents than are required under 
Sec.  1324a(b); or
    (B) To refuse to honor documents tendered that on their face 
reasonably appear to be genuine and to relate to the individual; and
    (ii) To make such request or refusal for the purpose or with the 
intent of discriminating against any individual in violation of 
paragraph (a)(1) of this section, regardless of whether such 
documentary practice is a condition of employment or causes economic 
harm to the individual.
    (b) Exceptions. (1) Paragraph (a)(1) of this section shall not 
apply to--
    (i) A person or other entity that employs three or fewer employees;
    (ii) Discrimination because of an individual's national origin by a 
person or other entity if such discrimination is covered by 42 U.S.C. 
2000e-2; or
    (iii) Discrimination because of citizenship status which--
    (A) Is otherwise required in order to comply with law, regulation, 
or Executive order; or
    (B) Is required by Federal, State, or local government contract; or
    (C) The Attorney General determines to be essential for an employer 
to do business with an agency or department of the Federal, State, or 
local government.
    (2) Notwithstanding any other provision of this part, it is not an 
unfair immigration-related employment practice for a person or other 
entity to prefer to hire an individual, or to recruit or refer for a 
fee an individual, who is a citizen or national of the United States 
over another individual who is an alien if the two individuals are 
equally qualified.


Sec.  44.201   [Reserved]


Sec.  44.202   Counting employees for jurisdictional purposes.

    The Special Counsel will calculate the number of employees referred 
to in Sec.  44.200(b)(1)(i) by counting all part-time and full-time 
employees employed on the date that the alleged discrimination 
occurred. The Special Counsel will use the 20 calendar week requirement 
contained in Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
2000e(b), for purposes of determining whether the exception of Sec.  
44.200(b)(1)(ii) applies, and will refer to the Equal Employment 
Opportunity Commission charges of national origin discrimination that 
the Special Counsel determines are covered by 42 U.S.C. 2000e-2.

[[Page 91791]]

Sec.  44.300   Filing a charge.

    (a) Who may file: Charges may be filed by:
    (1) Any injured party;
    (2) Any individual or entity authorized by an injured party to file 
a charge with the Special Counsel alleging that the injured party is 
adversely affected directly by an unfair immigration-related employment 
practice; or
    (3) Any officer of the Department of Homeland Security who alleges 
that an unfair immigration-related employment practice has occurred or 
is occurring.
    (b) Charges shall be filed within 180 days of the alleged 
occurrence of an unfair immigration-related employment practice. A 
charge is deemed to be filed on the date it is postmarked or the date 
on which the charging party otherwise delivers or transmits the charge 
to the Special Counsel.
    (c) Charges may be sent by:
    (1) U.S. mail;
    (2) Courier service;
    (3) Electronic or online submission; or
    (4) Facsimile.
    (d) No charge may be filed respecting an unfair immigration-related 
employment practice described in Sec.  44.200(a)(1)(i) if a charge with 
respect to that practice based on the same set of facts has been filed 
with the Equal Employment Opportunity Commission under Title VII of the 
Civil Rights Act of 1964, as amended, unless the charge is dismissed as 
being outside the scope of such title. No charge respecting an 
employment practice may be filed with the Equal Employment Opportunity 
Commission under such title if a charge with respect to such practice 
based on the same set of facts has been filed under this section, 
unless the charge is dismissed as being outside the scope of this part.


Sec.  44.301   Receipt of charge.

    (a) Within 10 days of receipt of a charge, the Special Counsel 
shall notify the charging party and respondent by certified mail, in 
accordance with paragraphs (b) and (c) of this section, of the Special 
Counsel's receipt of the charge.
    (b) The notice to the charging party shall specify the date on 
which the charge was received; state that the charging party, other 
than an officer of the Department of Homeland Security, may file a 
complaint before an administrative law judge if the Special Counsel 
does not do so within 120 days of receipt of the charge; and state that 
the charging party will have 90 days from the receipt of the letter of 
determination issued pursuant to Sec.  44.303(b) by which to file such 
a complaint.
    (c) The notice to the respondent shall include the date, place, and 
circumstances of the alleged unfair immigration-related employment 
practice.
    (d)(1) If a charging party's submission is found to be inadequate 
to constitute a complete charge as defined in Sec.  44.101(a), the 
Special Counsel shall notify the charging party that the charge is 
incomplete and specify what additional information is needed.
    (2) An incomplete charge that is later deemed to be complete under 
this paragraph is deemed filed on the date the initial but inadequate 
submission is postmarked or otherwise delivered or transmitted to the 
Special Counsel, provided any additional information requested by the 
Special Counsel pursuant to this paragraph is postmarked or otherwise 
provided, delivered or transmitted to the Special Counsel within 180 
days of the alleged occurrence of an unfair immigration-related 
employment practice or within 45 days of the date on which the charging 
party received the Special Counsel's request for additional 
information, whichever is later.
    (3) Once the Special Counsel determines adequate information has 
been submitted to constitute a complete charge, the Special Counsel 
shall issue the notices required by paragraphs (b) and (c) of this 
section within 10 days.
    (e) In the Special Counsel's discretion, the Special Counsel may 
deem a submission to be a complete charge even though it is inadequate 
to constitute a charge as defined in Sec.  44.101(a). The Special 
Counsel may then obtain the additional information specified in Sec.  
44.101(a) in the course of investigating the charge.
    (f) A charge or an inadequate submission referred to the Special 
Counsel by a federal, state, or local government agency appointed as an 
agent for accepting charges on behalf of the Special Counsel is deemed 
filed on the date the charge or inadequate submission was postmarked to 
or otherwise delivered or transmitted to that agency. Upon receipt of 
the referred charge or inadequate submission, the Special Counsel shall 
follow the applicable notification procedures for the receipt of a 
charge or inadequate submission set forth in this section.
    (g) The Special Counsel shall dismiss a charge or inadequate 
submission that is filed more than 180 days after the alleged 
occurrence of an unfair immigration-related employment practice, unless 
the Special Counsel determines that the principles of waiver, estoppel, 
or equitable tolling apply.


Sec.  44.302   Investigation.

    (a) The Special Counsel may seek information, request documents and 
answers to written interrogatories, inspect premises, and solicit 
testimony as the Special Counsel believes is necessary to ascertain 
compliance with this part.
    (b) The Special Counsel may require any person or other entity to 
present Employment Eligibility Verification Forms (``Forms I-9'') for 
inspection.
    (c) The Special Counsel shall have reasonable access to examine the 
evidence of any person or other entity being investigated. The 
respondent shall permit access by the Special Counsel during normal 
business hours to such books, records, accounts, papers, electronic and 
digital documents, databases, systems of records, witnesses, premises, 
and other sources of information the Special Counsel may deem pertinent 
to ascertain compliance with this part.
    (d) A respondent, upon receiving notice by the Special Counsel that 
it is under investigation, shall preserve all evidence, information, 
and documents potentially relevant to any alleged unfair immigration-
related employment practices, and shall suspend routine or automatic 
deletion of all such evidence, information, and documents.


Sec.  44.303   Determination.

    (a) Within 120 days of the receipt of a charge, the Special Counsel 
shall undertake an investigation of the charge and determine whether to 
file a complaint with respect to the charge.
    (b) If the Special Counsel determines not to file a complaint with 
respect to such charge by the end of the 120-day period, or decides to 
continue the investigation of the charge beyond the 120-day period, the 
Special Counsel shall, by the end of the 120-day period, issue letters 
to the charging party and respondent by certified mail notifying both 
parties of the Special Counsel's determination.
    (c) When a charging party receives a letter of determination issued 
pursuant to paragraph (b) of this section, the charging party, other 
than an officer of the Department of Homeland Security, may file a 
complaint directly before an administrative law judge in the Office of 
the Chief Administrative Hearing Officer (OCAHO) within 90 days after 
his or her receipt of the Special Counsel's letter of determination. 
The charging party's complaint must be filed with OCAHO as provided in 
28 CFR part 68.

[[Page 91792]]

    (d) The Special Counsel's failure to file a complaint with respect 
to such charge with OCAHO within the 120-day period shall not affect 
the right of the Special Counsel to continue to investigate the charge 
or later to bring a complaint before OCAHO.
    (e) The Special Counsel may seek to intervene at any time in any 
proceeding brought by a charging party before OCAHO.


Sec.  44.304   Special Counsel acting on own initiative.

    (a) The Special Counsel may, on the Special Counsel's own 
initiative, conduct investigations respecting unfair immigration-
related employment practices when there is reason to believe that a 
person or other entity has engaged or is engaging in such practices, 
and shall notify a respondent by certified mail of the commencement of 
the investigation.
    (b) The Special Counsel may file a complaint with OCAHO when there 
is reasonable cause to believe that an unfair immigration-related 
employment practice has occurred no more than 180 days prior to the 
date on which the Special Counsel opened an investigation of that 
practice.


Sec.  44.305   Regional offices.

    The Special Counsel, in accordance with regulations of the Attorney 
General, shall establish such regional offices as may be necessary to 
carry out the Special Counsel's duties.

    Dated: December 14, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016-30491 Filed 12-16-16; 8:45 am]
 BILLING CODE 4410-13-P