The Immigration Reform and Control Act of 1986 protects against discrimination based on “national origin”, which refers to being from a particular country or region of the world, or having an accent, or appearing to be of a particular ethnicity. The law does not protect people who are not authorized to work in the U.S., and it excludes employers with less than four employees; jobs with a lawful citizenship requirement; or when a national origin discrimination claim would be covered by a different law.

On December 19, 2016 a final ruling was issued on a change in Section 274B of the Immigration and Nationality Act (INA), and on January 18, 2017, the new ruling was put into effect by the U.S. Department of Justice (DOJ) Civil Rights Division. The new ruling updates regulations the DOJ uses to enforce employment-related anti-discrimination provisions that Congress included in the “unfair immigration-related employment practices” section of the INA.

The Immigrant and Employee Rights (IER) is responsible for enforcing the antidiscrimination provision of the INA. The statute prohibits, among other things, citizenship, immigration status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; retaliation and intimidation.

The new regulations include changing the name of the Special Counsel's Office (OSC) to Immigrant and Employee Rights (IER) section (still part of the DOJ's Civil Rights Division); and adding a definition of “discriminate”. It eliminates the statutory requirement that the IER show that the employer intended to discriminate based on citizenship status by redefining discrimination to include any instance of disparate treatment “regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility”.

The revision extends the time frame for submitting a discrimination claim if the OSC decides they did not provide enough information to meet the requirements of a “charge”; and the OSC may have up to five years from the date of an alleged discrimination to file a complaint, so long as the investigation was opened within 180 days of the alleged act. The ruling also states that the OSC can initiate an investigation at any time without having received an employee complaint.

The definitions of hiring and citizenship status have been updated. Now, any conduct that takes place within the entire hiring process, not just the end hiring, could count as an unfair immigration-related employment practice. It is clarified in the rule that the term citizenship status implies more than just whether someone is a U.S. citizen and it includes immigration status. For example, posting a job opportunity for only U.S. citizens or persons with a Permanent Resident Card (green card) would not include other “protected individuals”, such as asylees or refugees, and thus could result in a finding of discrimination. An employer may be held liable for discrimination even if there has been no economic harm to the worker.

An employer can be found liable for immigration-related employment discrimination if they do or say anything that differentiates between citizenship status, regardless of the reason or intent. This includes any differentiation between how often citizenship is asked to be verified, how many documents, and what types of documents are required to verify work eligibility. A person who holds a Permanent Resident Card “green card” is a permanent resident – they have been granted authorization to live and work in the U.S. on a permanent basis. The ruling states that a person's or other entity's request, for purposes of satisfying the requirements of section 274A(b), for more or different documents than are required under such section or refusing to honor documents that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice.

It is well known that a green card is valid for 10 years and has to be renewed before it expires; however anyone having a valid green card at the time of employment is a permanent resident of the U.S. Where employers often violate the law is when they treat a green card citizen differently than a national origin U.S. citizen when verifying employment eligibility by either requiring specific documentation for the green card holder or requiring that the green card holder show proof of its renewal. Once the green card has been initially validated, that person is a U.S. citizen and can show the same type and amount of documentation as the national origin citizen. For example, if an employer routinely asks their permanent resident card workers to provide a green card for their work identity eligibility, but U.S. citizen workers are asked to provide driver's licenses and social security cards, then this could open the door for a complaint of disparate treatment.

The current ISO Employment Practices Liability Policy and the majority of standard policies providing coverage for employment practices liability exclude coverage for violations of laws applicable to employers, which includes violations of the Immigration and Reform Control Act of 1986. Insurance is not available to cover an employer's illegal acts. While there are no standard forms available, a few carriers sometimes add a defense only endorsement to the EPL policy that provides a sublimit for defense of an otherwise covered claim against an insured alleging violations of the Immigration Reform Control Act of 1986 or any other similar federal, state or local laws or regulations. Note that the coverage is for alleged acts, not just actual acts. The sublimit is within the limit of liability for Employment Practices Liability Coverage, and not an additional limit of coverage. The defense sublimits shown on the endorsements we reviewed ranged from $25,000 to $100,000.

To date, the DOJ has settled five cases of Immigration-Related Discrimination Claims in 2017. Four of the five cases concluded that lawful permanent residents were requested to show their Permanent Resident Cards to prove their work authorization but the companies charged did not request specific documents from U.S. citizens. Lawful permanent residents often have the same work authorization documents available to them as U.S. citizens and may choose acceptable documents other than a Permanent Resident Card to prove they are authorized to work. The antidiscrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on the employees' citizenship or national origin. The civil penalties in these four cases ranged from $2,500 to $140,000, and compensations to workers who lost wages due to unfair document processes. Under the settlements, the companies agreed to post notices informing workers about their rights under the INA's antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements.

It is clear that the new regulations leave employers subject to increased potential for liability, particularly in industries such as agricultural, restaurant, manufacturing, etc., that routinely hire permanent resident card holders; or those businesses located near border states.