Proposed DOJ Rule Could Ramp Up I-9 Enforcement

Allen Smith, SHRM, Aug. 18, 2016- "The Department of Justice Office of Special Counsel (OSC) added some quivers to its bow in its fight to curtail unlawful hiring discrimination against immigrants in a proposed rule published Aug. 15 in the Federal Register. The rule's proposed change of terminology from "documentation abuses" to "unfair documentary practices" is "very significant," said Kevin Lashus, an attorney with FisherBroyles in Austin, Texas. "This rule redefines 'intent.' " And the change, he said, should be reflected in employers' immigration policies. The use of the word "abuses" suggests that there must be intent to harm for employers to face any liability. There's no such suggestion with documentary practices that are merely "unfair." In the past, some employer practices were considered unfair but not abusive, which prevented Justice Department lawyers from moving forward on charges. "This frees them up" to take action, Lashus said. The OSC, which will switch its name to the Immigrant and Employee Rights Section when the rule is finalized, will formally expand the prohibition on discrimination based on national origin or citizenship beyond the I-9 process to the E-Verify process, an expansion that the agency has espoused in the past but not set out in its regulations until now. The Immigrant and Employee Rights Section "will be empowered by these proposed rules to scrutinize how employers seek, track and hire employees like never before," Lashus said. "The nation's immigration discussion during this campaign season is such a divisive and visceral one. These rules will only fuel the fire." "