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United States Code (Last Updated: May 24, 2014) |
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Title 8. ALIENS AND NATIONALITY |
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Chapter 12. IMMIGRATION AND NATIONALITY |
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SubChapter II. IMMIGRATION |
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Part VIII. General Penalty Provisions |
§ 1324b. Unfair immigration-related employment practices
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(a) Prohibition of discrimination based on national origin or citizenship status (1) General rule 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) 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— (A) because of such individual’s national origin, or (B) in the case of a protected individual (as defined in paragraph (3)), because of such individual’s citizenship status. (2) Exceptions Paragraph (1) shall not apply to— (A) a person or other entity that employs three or fewer employees, (B) a person’s or entity’s discrimination because of an individual’s national origin if the discrimination with respect to that person or entity and that individual is covered under section 703 of the Civil Rights Act of 1964 [42 U.S.C. 2000e–2], or (C) discrimination because of citizenship status which is otherwise required in order to comply with law, regulation, or executive order, or required by Federal, State, or local government contract, or which 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. (3) “Protected individual” defined As used in paragraph (1), the term “protected individual” means an individual who— (A) is a citizen or national of the United States, or (B) is an alien who is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under section 1160(a) or 1255a(a)(1) of this title, is admitted as a refugee under section 1157 of this title, or is granted asylum under section 1158 of this title; but does not include (i) an alien who 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 , and (ii) an alien who has applied on a timely basis, but has not been naturalized as a citizen within 2 years after the date of the application, unless the alien can establish that the alien is actively pursuing naturalization, except that time consumed in the Service’s processing the application shall not be counted toward the 2-year period.(4) Additional exception providing right to prefer equally qualified citizens Notwithstanding any other provision of this section, it is not an unfair immigration-related employment practice for a person or other entity to prefer to hire, recruit, or refer 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.
(5) Prohibition of intimidation or retaliation It is also an unfair immigration-related employment practice 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 this section 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 this section. An individual so intimidated, threatened, coerced, or retaliated against shall be considered, for purposes of subsections (d) and (g) of this section, to have been discriminated against.
(6) Treatment of certain documentary practices as employment practices A person’s or other entity’s request, for purposes of satisfying the requirements of section 1324a(b) of this title, for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1).
(b) Charges of violations (1) In general Except as provided in paragraph (2), any person alleging that the person is adversely affected directly by an unfair immigration-related employment practice (or a person on that person’s behalf) or an officer of the Service alleging that an unfair immigration-related employment practice has occurred or is occurring may file a charge respecting such practice or violation with the Special Counsel (appointed under subsection (c) of this section). Charges shall be in writing under oath or affirmation and shall contain such information as the Attorney General requires. The Special Counsel by certified mail shall serve a notice of the charge (including the date, place, and circumstances of the alleged unfair immigration-related employment practice) on the person or entity involved within 10 days.
(2) No overlap with EEOC complaints No charge may be filed respecting an unfair immigration-related employment practice described in subsection (a)(1)(A) of this section 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 [42 U.S.C. 2000e et seq.], 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 subsection, unless the charge is dismissed under this section as being outside the scope of this section.
(c) Special Counsel (1) Appointment The President shall appoint, by and with the advice and consent of the Senate, a Special Counsel for Immigration-Related Unfair Employment Practices (hereinafter in this section referred to as the “Special Counsel”) within the Department of Justice to serve for a term of four years. In the case of a vacancy in the office of the Special Counsel the President may designate the officer or employee who shall act as Special Counsel during such vacancy.
(2) Duties The Special Counsel shall be responsible for investigation of charges and issuance of complaints under this section and in respect of the prosecution of all such complaints before administrative law judges and the exercise of certain functions under subsection (j)(1) of this section.
(3) Compensation The Special Counsel is entitled to receive compensation at a rate not to exceed the rate now or hereafter provided for grade GS–17 of the General Schedule, under section 5332 of title 5.
(4) 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 his duties.
(d) Investigation of charges (1) By Special Counsel The Special Counsel shall investigate each charge received and, within 120 days of the date of the receipt of the charge, determine whether or not there is reasonable cause to believe that the charge is true and whether or not to bring a complaint with respect to the charge before an administrative law judge. The Special Counsel may, on his own initiative, conduct investigations respecting unfair immigration-related employment practices and, based on such an investigation and subject to paragraph (3), file a complaint before such a judge.
(2) Private actions If the Special Counsel, after receiving such a charge respecting an unfair immigration-related employment practice which alleges knowing and intentional discriminatory activity or a pattern or practice of discriminatory activity, has not filed a complaint before an administrative law judge with respect to such charge within such 120-day period, the Special Counsel shall notify the person making the charge of the determination not to file such a complaint during such period and the person making the charge may (subject to paragraph (3)) file a complaint directly before such a judge within 90 days after the date of receipt of the notice. The Special Counsel’s failure to file such a complaint within such 120-day period shall not affect the right of the Special Counsel to investigate the charge or to bring a complaint before an administrative law judge during such 90-day period.
(3) Time limitations on complaints No 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. This subparagraph shall not prevent the subsequent amending of a charge or complaint under subsection (e)(1) of this section.
(e) Hearings (1) Notice Whenever a complaint is made that a person or entity has engaged in or is engaging in any such unfair immigration-related employment practice, an administrative law judge shall have power to issue and cause to be served upon such person or entity a copy of the complaint and a notice of hearing before the judge at a place therein fixed, not less than five days after the serving of the complaint. Any such complaint may be amended by the judge conducting the hearing, upon the motion of the party filing the complaint, in the judge’s discretion at any time prior to the issuance of an order based thereon. The person or entity so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint.
(2) Judges hearing cases Hearings on complaints under this subsection shall be considered before administrative law judges who are specially designated by the Attorney General as having special training respecting employment discrimination and, to the extent practicable, before such judges who only consider cases under this section.
(3) Complainant as party Any person filing a charge with the Special Counsel respecting an unfair immigration-related employment practice shall be considered a party to any complaint before an administrative law judge respecting such practice and any subsequent appeal respecting that complaint. In the discretion of the judge conducting the hearing, any other person may be allowed to intervene in the proceeding and to present testimony.
(f) Testimony and authority of hearing officers (1) Testimony The testimony taken by the administrative law judge shall be reduced to writing. Thereafter, the judge, in his discretion, upon notice may provide for the taking of further testimony or hear argument.
(2) Authority of administrative law judges In conducting investigations and hearings under this subsection of that section.
(2) The provisions of this section shall terminate 30 calendar days after receipt of the last report required to be transmitted under section 1324a(j) 2 of this title if— (A) the Comptroller General determines, and so reports in such report that— (i) no significant discrimination has resulted, against citizens or nationals of the United States or against any eligible workers seeking employment, from the implementation of section 1324a of this title, or (ii) such section has created an unreasonable burden on employers hiring such workers; and (B) there has been enacted, within such period of 30 calendar days, a joint resolution stating in substance that the Congress approves the findings of the Comptroller General contained in such report. The provisions of subsections (m) and (n) 2 of section 1324a of this title shall apply to any joint resolution under subparagraph (B) in the same manner as they apply to a joint resolution under subsection (l) 2 of such section. (l) Dissemination of information concerning anti-discrimination provisions (1) Not later than 3 months after November 29, 1990 , the Special Counsel, in cooperation with the chairman of the Equal Employment Opportunity Commission, the Secretary of Labor, and the Administrator of the Small Business Administration, shall conduct a campaign to disseminate information respecting the rights and remedies prescribed under this section and under title VII of the Civil Rights Act of 1964 [42 U.S.C. 2000e et seq.] in connection with unfair immigration-related employment practices. Such campaign shall be aimed at increasing the knowledge of employers, employees, and the general public concerning employer and employee rights, responsibilities, and remedies under this section and such title.(2) In order to carry out the campaign under this subsection, the Special Counsel— (A) may, to the extent deemed appropriate and subject to the availability of appropriations, contract with public and private organizations for outreach activities under the campaign, and (B) shall consult with the Secretary of Labor, the chairman of the Equal Employment Opportunity Commission, and the heads of such other agencies as may be appropriate. (3) There are authorized to be appropriated to carry out this subsection $10,000,000 for each fiscal year (beginning with fiscal year 1991).
References In Text
The Civil Rights Act of 1964, referred to in subsecs. (b)(2) and (l)(1), is Pub. L. 88–352,
Subsections (j), (l), (m), and (n) of section 1324a of this title, referred to in subsec. (k), were repealed by Pub. L. 104–208, div. C, title IV, § 412(c),
Amendments
1996—Subsec. (a)(3)(B). Pub. L. 104–208, § 671(d)(1)(B), struck out “, 1161(a),” after “section 1160(a)”.
Subsec. (a)(6). Pub. L. 104–208, § 421(a), substituted “A person’s” for “For purposes of paragraph (1), a person’s” and “if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1)” for “relating to the hiring of individuals”.
1994—Subsec. (g)(2)(C). Pub. L. 103–416 substituted “the Special Counsel” for “an administrative law judge” in first sentence.
1991—Subsec. (g)(2)(B)(iv)(II). Pub. L. 102–232, § 306(b)(1), substituted “subclauses (III) and (IV)” for “subclause (IV)”.
Subsec. (g)(2)(B)(iv)(IV). Pub. L. 102–232, § 306(b)(3)(A), substituted a semicolon for period at end.
Subsec. (g)(2)(B)(v), (vi). Pub. L. 102–232, § 306(b)(3)(B), substituted semicolons for commas at end.
Subsec. (g)(2)(B)(vii). Pub. L. 102–232, § 306(b)(3)(C), (D), substituted a semicolon for comma at end and “to remove (in an appropriate case)” for “to order (in an appropriate case) the removal of”.
Subsec. (g)(2)(B)(viii). Pub. L. 102–232, § 306(b)(3)(E), substituted “to lift (in an appropriate case)” for “to order (in an appropriate case) the lifting of”.
Subsec. (g)(2)(D). Pub. L. 102–232, § 306(c)(1), substituted “physically” for “physicially”.
1990—Subsec. (a)(1)(B). Pub. L. 101–649, § 533(a)(1), substituted “protected individual” for “citizen or intending citizen”.
Subsec. (a)(3). Pub. L. 101–649, § 533(a)(2), (3), in heading and text substituted “protected individual” for “citizen or intending citizen”.
Subsec. (a)(3)(B). Pub. L. 101–649, § 533(a)(4), substituted “is an alien who is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under section 1160(a), 1161(a), or 1255a(a)(1) of this title, is admitted as a refugee under section 1157 of this title, or is granted asylum under section 1158 of this title; but does not” for “is an alien who—
“(i) is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under section 1160(a), 1161(a), or 1255a(a)(1) of this title, is admitted as a refugee under section 1157 of this title, or is granted asylum under section 1158 of this title, and
“(ii) evidences an intention to become a citizen of the United States through completing a declaration of intention to become a citizen;
but does not”, and in closing provisions substituted “(i)” and “(ii)” for “(I)” and “(II)”, respectively.
Pub. L. 101–649, § 532(a), inserted reference to sections 1160(a) and 1161(a) of this title in cl. (i).
Subsec. (a)(5). Pub. L. 101–649, § 534(a), added par. (5).
Subsec. (a)(6). Pub. L. 101–649, § 535(a), added par. (6).
Subsec. (d)(2). Pub. L. 101–649, § 537(a), inserted “the Special Counsel shall notify the person making the charge of the determination not to file such a complaint during such period and” after “120-day period,”, inserted “within 90 days after the date of receipt of the notice” before period at end, and inserted at end “The Special Counsel’s failure to file such a complaint within such 120-day period shall not affect the right of the Special Counsel to investigate the charge or to bring a complaint before an administrative law judge during such 90-day period.”
Subsec. (g)(2)(B)(iii). Pub. L. 101–649, § 539(a)(1), struck out “and” at end.
Subsec. (g)(2)(B)(iv). Pub. L. 101–649, § 539(a)(2), which directed the substitution of a comma for the period at end of cl. (iv)(II), could not be executed because of the general amendment of cl. (iv) by Pub. L. 101–649, § 536(a), see below.
Pub. L. 101–649, § 536(a), amended cl. (iv) generally. Prior to amendment, cl. (iv) read as follows:
“(I) except as provided in subclause (II), to pay a civil penalty of not more than $1,000 for each individual discriminated against, and
“(II) in the case of a person or entity previously subject to such an order, to pay a civil penalty of not more than $2,000 for each individual discriminated against.”
Subsec. (g)(2)(B)(v) to (viii). Pub. L. 101–649, § 539(a)(3), added cls. (v) to (viii).
Subsec. (l). Pub. L. 101–649, § 531, added subsec. (l).
1988—Subsec. (a)(1). Pub. L. 100–525, § 2(b)(1), inserted reference to section 1324a(h)(3) of this title.
Subsec. (e)(3). Pub. L. 100–525, § 2(b)(2), struck out “said” before “proceeding”.
Subsec. (g)(2)(A). Pub. L. 100–525, § 2(b)(3), substituted “that” for “that that”.
Subsec. (g)(2)(B)(ii). Pub. L. 100–525, § 2(b)(4), substituted “1324a” for “1324”.
Subsec. (g)(3). Pub. L. 100–525, § 2(b)(5), substituted “engaged and” for “engaged or”.
Subsec. (h). Pub. L. 100–525, § 2(b)(6), substituted “attorney’s” for “attorneys’ ” in heading.
Effective Date Of Amendment
Pub. L. 104–208, div. C, title IV, § 421(b),
Amendment by Pub. L. 103–416 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 219(dd) of Pub. L. 103–416, set out as a note under section 1101 of this title.
Amendment by Pub. L. 102–232 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 310(1) of Pub. L. 102–232, set out as a note under section 1101 of this title.
Pub. L. 101–649, title V, § 532(b),
Pub. L. 101–649, title V, § 533(b),
Pub. L. 101–649, title V, § 534(b),
Pub. L. 101–649, title V, § 535(b),
Pub. L. 101–649, title V, § 536(b),
Pub. L. 101–649, title V, § 537(b),
Pub. L. 101–649, title V, § 539(b),
Amendment by Pub. L. 100–525 effective as if included in enactment of Immigration Reform and Control Act of 1986, Pub. L. 99–603, see section 2(s) of Pub. L. 100–525, set out as a note under section 1101 of this title.
Miscellaneous
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, § 101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of Title 5.
Pub. L. 99–603, title I, § 102(b),