E-58 Authority

§ 1324b. Unfair immigration-related employment practices, 8 USCA § 1324b

8 U.S.C.A. § 1324b
§ 1324b. Unfair immigration-related employment practices
Effective: September 30, 1996
Currentness

(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.A. §
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

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§ 1324b. Unfair immigration-related employment practices, 8 USCA § 1324b

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.A. § 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
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§ 1324b. Unfair immigration-related employment practices, 8 USCA § 1324b

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

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§ 1324b. Unfair immigration-related employment practices, 8 USCA § 1324b

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 subsection1 and in accordance with regulations of the Attorney
General, the Special Counsel and administrative law judges shall have reasonable access to examine evidence of any
person or entity being investigated. The administrative law judges by subpoena may compel the attendance of witnesses
and the production of evidence at any designated place or hearing. In case of contumacy or refusal to obey a subpoena
lawfully issued under this paragraph and upon application of the administrative law judge, an appropriate district court of
the United States may issue an order requiring compliance with such subpoena and any failure to obey such order may be
punished by such court as a contempt thereof.
(g) Determinations
(1) Order
The administrative law judge shall issue and cause to be served on the parties to the proceeding an order, which shall be
final unless appealed as provided under subsection (i) of this section.
(2) Orders finding violations
(A) In general
If, upon the preponderance of the evidence, an administrative law judge determines that any person or entity named in
the complaint has engaged in or is engaging in any such unfair immigration-related employment practice, then the judge
shall state his findings of fact and shall issue and cause to be served on such person or entity an order which requires
such person or entity to cease and desist from such unfair immigration-related employment practice.
(B) Contents of order
Such an order also may require the person or entity-(i) to comply with the requirements of section 1324a(b) of this title with respect to individuals hired (or recruited or
referred for employment for a fee) during a period of up to three years;
(ii) to retain for the period referred to in clause (i) and only for purposes consistent with section 1324a(b)(5) of this
title, the name and address of each individual who applies, in person or in writing, for hiring for an existing position,
or for recruiting or referring for a fee, for employment in the United States;
(iii) to hire individuals directly and adversely affected, with or without back pay;
(iv)(I) except as provided in subclauses (II) through (IV), to pay a civil penalty of not less than $250 and not more
than $2,000 for each individual discriminated against,

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§ 1324b. Unfair immigration-related employment practices, 8 USCA § 1324b

(II) except as provided in subclauses (III) and (IV), in the case of a person or entity previously subject to a single
order under this paragraph, to pay a civil penalty of not less than $2,000 and not more than $5,000 for each individual
discriminated against,
(III) except as provided in subclause (IV), in the case of a person or entity previously subject to more than one order
under this paragraph, to pay a civil penalty of not less than $3,000 and not more than $10,000 for each individual
discriminated against, and
(IV) in the case of an unfair immigration-related employment practice described in subsection (a)(6) of this section, to
pay a civil penalty of not less than $100 and not more than $1,000 for each individual discriminated against;
(v) to post notices to employees about their rights under this section and employers’ obligations under section 1324a
of this title;
(vi) to educate all personnel involved in hiring and complying with this section or section 1324a of this title about the
requirements of this section or such section;
(vii) to remove (in an appropriate case) a false performance review or false warning from an employee’s personnel
file; and
(viii) to lift (in an appropriate case) any restrictions on an employee’s assignments, work shifts, or movements.
(C) Limitation on back pay remedy
In providing a remedy under subparagraph (B)(iii), back pay liability shall not accrue from a date more than two years
prior to the date of the filing of a charge with the Special Counsel. Interim earnings or amounts earnable with reasonable
diligence by the individual or individuals discriminated against shall operate to reduce the back pay otherwise allowable
under such paragraph. No order shall require the hiring of an individual as an employee or the payment to an individual
of any back pay, if the individual was refused employment for any reason other than discrimination on account of
national origin or citizenship status.
(D) Treatment of distinct entities
In applying this subsection in the case of a person or entity composed of distinct, physically separate subdivisions each
of which provides separately for the hiring, recruiting, or referring for employment, without reference to the practices of,
and not under the control of or common control with, another subdivision, each such subdivision shall be considered a
separate person or entity.
(3) Orders not finding violations
If upon the preponderance of the evidence an administrative law judge determines that the person or entity named in the
complaint has not engaged and is not engaging in any such unfair immigration-related employment practice, then the judge
shall state his findings of fact and shall issue an order dismissing the complaint.
(h) Awarding of attorney’s fees
In any complaint respecting an unfair immigration-related employment practice, an administrative law judge, in the judge’s
discretion, may allow a prevailing party, other than the United States, a reasonable attorney’s fee, if the losing party’s
argument is without reasonable foundation in law and fact.
(i) Review of final orders
(1) In general

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§ 1324b. Unfair immigration-related employment practices, 8 USCA § 1324b

Not later than 60 days after the entry of such final order, any person aggrieved by such final order may seek a review of
such order in the United States court of appeals for the circuit in which the violation is alleged to have occurred or in
which the employer resides or transacts business.
(2) Further review
Upon the filing of the record with the court, the jurisdiction of the court shall be exclusive and its judgment shall be final,
except that the same shall be subject to review by the Supreme Court of the United States upon writ of certiorari or
certification as provided in section 1254 of Title 28.
(j) Court enforcement of administrative orders
(1) In general
If an order of the agency is not appealed under subsection (i)(1) of this section, the Special Counsel (or, if the Special
Counsel fails to act, the person filing the charge) may petition the United States district court for the district in which a
violation of the order is alleged to have occurred, or in which the respondent resides or transacts business, for the
enforcement of the order of the administrative law judge, by filing in such court a written petition praying that such order
be enforced.
(2) Court enforcement order
Upon the filing of such petition, the court shall have jurisdiction to make and enter a decree enforcing the order of the
administrative law judge. In such a proceeding, the order of the administrative law judge shall not be subject to review.
(3) Enforcement decree in original review
If, upon appeal of an order under subsection (i)(1) of this section, the United States court of appeals does not reverse such
order, such court shall have the jurisdiction to make and enter a decree enforcing the order of the administrative law judge.
(4) Awarding of attorney’s fees
In any judicial proceeding under subsection (i) of this section or this subsection, the court, in its discretion, may allow a
prevailing party, other than the United States, a reasonable attorney’s fee as part of costs but only if the losing party’s
argument is without reasonable foundation in law and fact.
(k) Termination dates
(1) This section shall not apply to discrimination in hiring, recruiting, or referring, or discharging of individuals occurring
after the date of any termination of the provisions of section 1324a of this title, under subsection (l) 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) 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.

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§ 1324b. Unfair immigration-related employment practices, 8 USCA § 1324b

The provisions of subsections (m) and (n) 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) 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.A. § 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).
CREDIT(S)
(June 27, 1952, c. 477, Title II, ch. 8, § 274B, as added Nov. 6, 1986, Pub.L. 99-603, Title I, 102(a), 100 Stat. 3374; amended
Oct. 24, 1988, Pub.L. 100-525, § 2(b), 102 Stat. 2610; Nov. 29, 1990, Pub.L. 101-649, Title V, §§ 531, 532(a), 533(a),
534(a), 535(a), 536(a), 537(a), 539(a), 104 Stat. 5054, 5055, 5056; Dec. 12, 1991, Pub.L. 102-232, Title III, §
306(b)(1),(3),(c)(1), 105 Stat. 1752; Oct. 25, 1994, Pub.L. 103-416, Title II, § 219(q), 108 Stat. 4317; Sept. 30, 1996, Pub.L.
104-208, Div. C, Title IV, § 421(a), Title VI, § 671(d)(1)(B), 110 Stat. 3009-670, 3009-723.)
Notes of Decisions (19)
Footnotes
1

So in original. Probably should be “section”.

8 U.S.C.A. § 1324b, 8 USCA § 1324b
Current through P.L. 114-25 (excluding P.L. 114-18) approved 6-15-2015
End of Document

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