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- How to File an Unlawful Employment Complaint
- How to file an Unfair Immigration-related Employment Practices Complaint
The Office of the Chief Administrative Hearing Officer has jurisdiction over three types of cases arising under the Immigration and Nationality Act as amended (INA), including those involving allegations of: (1) knowingly hiring, recruiting or referring for a fee unauthorized aliens, or the continued employment of unauthorized aliens, failure to comply with employment verification requirements, and requiring indemnity bonds from employees in violation of section 274A (PDF) of the INA (employer sanctions); (2) immigration-related unfair employment practices in violation of section 274B (PDF) of the INA; and (3) immigration-related document fraud in violation of section 274C (PDF) of the INA. OCAHO is headed by a Chief Administrative Hearing Officer (CAHO) who provides overall program direction, articulates policies and procedures, establishes priorities, administers the hearing process presided over by Administrative Law Judges (ALJs) and reviews the employer sanctions decisions of the ALJs.
The ALJs hold hearings and related administrative proceedings and render decisions on cases assigned to them concerning the three areas listed above. The ALJs may impose sanctions and penalties as prescribed by law, issue cease and desist orders, award attorney's fees and, in the case of immigration-related unfair employment practices, award back pay. The CAHO conducts administrative review of ALJs' decisions in the areas of employer sanctions and document fraud, and may modify or vacate those ALJ decisions. The Attorney General also may review ALJ or CAHO decisions in employer sanctions and document fraud cases. The CAHO also certifies, as having received the requisite training in employment discrimination matters, ALJs who hear cases regarding the imposition of penalties against employers who discriminate against any individual--other than an unauthorized alien--in employment-related situations because of that individual's national origin or citizenship status.
The provisions of section 274A of the INA apply to all employers in the United States with regard to all employees hired, recruited or referred after November 6, 1986, the date of enactment of the Immigration Reform and Control Act (IRCA).
If an investigation by the Bureau of Immigration and Customs Enforcement, Department of Homeland Security (DHS), indicates a violation of section 274A, the DHS may issue a Notice of Intent to Fine (NIF) to the employer detailing the nature of the violation and the proposed fine. The employer must choose either to pay the fine or to request a hearing. If the employer opts for a hearing, the DHS can decide to pursue the matter by filing a complaint with OCAHO. OCAHO reviews the complaint, assigns the case to an ALJ, and sends all parties a copy of a Notice of Hearing and Complaint, thus setting the adjudicative process in motion.
The Notice of Hearing spells out the procedural requirements for answering the complaint and the potential consequences of failure to file a timely answer. Many employer sanctions cases never reach the evidentiary hearing stage because the parties either reach a settlement, subject to the approval of the ALJ, or the ALJ reaches a decision on the merits through dispositive prehearing rulings. Once a final agency order has been issued, either by the ALJ or the CAHO, the employer has 45 days to file an appeal with the appropriate Federal Circuit Court of Appeals.
Section 274B of the INA prohibits employment discrimination on the basis of citizenship status or national origin. Specifically, any employer, recruiter or referrer for a fee who employs more than three persons may not discharge or refuse to hire, recruit or refer a U.S. citizen or an alien authorized to work in the United States on the basis of citizenship status. The same prohibitions apply to discrimination on the basis of national origin, if the employer has more than three but less than fifteen employees (the Equal Employment Opportunity Commission (EEOC) has jurisdiction over employers of fifteen or more individuals). Moreover, the statute prohibits retaliation or intimidation by an employer against an employee seeking to exercise his or her rights under this section. Finally, the statute prohibits "document abuse" on the part of the employer, which occurs when the employer asks an employee for more or different documents than those required by the employment eligibility verification system in section 274A, with the intent of discriminating against the employee in violation of section 274B. Congress included section 274B in IRCA out of a concern that employers might overreact to the threat of employer sanctions penalties by refusing to hire anyone who appears "foreign" or who speaks with an accent.
Individuals who believe that they have suffered discrimination in violation of section 274B may file a charge with the Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). The OSC then has 120 days to determine whether to file a complaint with OCAHO on behalf of the individual charging party. If the OSC chooses not to file a complaint, the individual may then file a "their own complaint" directly with OCAHO.
The Chief Administrative Hearing Officer assigns section 274B cases to ALJs who have been specifically trained and designated to hear discrimination complaints. Once the ALJ has rendered a formal decision, a party has 60 days to file an appeal with the appropriate Federal Circuit Court of Appeals.
The Immigration Act of 1990 added section 274C to the INA. Section 274C prohibits the knowing creation, use, acceptance, forging, altering, counterfeiting and false making of any document for the purpose of satisfying a requirement of, or obtaining a benefit under, the INA. In addition, section 274C forbids any individual to prepare, file or assist in the preparation or filing of any INA application or document with knowledge or in reckless disregard of the fact that such document or application was falsely made. It is also a violation of section 274C for someone to fail to present the same set of documents upon arrival by common carrier in the United States that he or she used to board the common carrier. Section 274C was principally added to the INA in order to deter the manufacture and use of false documents that undermines the efficacy of the employer sanctions provisions, although the breadth of its language makes it applicable to a wide range of immigration-related document fraud.
The procedures for adjudicating document fraud cases are the same as those that apply to employer sanctions. One important and unique aspect of document fraud cases, however, is that the determination that an alien has committed document fraud can be a ground for removal of that alien from the United States.
28 CFR Part 68
Rules of Practice and Procedure for Administrative Hearings Before Administrative Law Judges in Cases Involving Allegations of Unlawful Employment of Aliens, Unfair Immigration-Related Employment Practices and Document Fraud Cases.
28 CFR Part 44
Unfair Immigration-Related Employment Practices.
8 CFR Part 274a
Control of Employment of Aliens.
8 CFR Part 270
Penalties for Document Fraud.
Administrative Procedure Act
Public information; agency rules, opinions, orders, records, and proceedings.
OCAHO decisions that may be cited, used, or relied upon as precedents in future adjudications are available electronically under the heading Published Decisions. Unpublished decisions or other information covered by the Freedom of Information Act (FOIA) may be requested from EOIR's FOIA Contact.
The Office of the Chief Administrative Hearing Officer publishes decisions that have been selected for and may be used as precedent pursuant to 5 U.S.C. section 552(a)(2). Each decision has been given an OCAHO Reference Number for publication purposes.
Decisions are available in bound volumes, entitled Administrative Decisions Under Employer Sanctions, Unfair Immigration-Related Employment Practices and Civil Penalty Document Fraud Laws of the United States. The bound volumes and the looseleaf volume of the most recent decisions are available here electronically through the links below. Decisions in the looseleaf volume, which are not yet published in the form of a bound volume, may be cited nevertheless as part of their respective volume. (See Citation Format (PDF).)
In employer sanctions and document fraud cases, a modification or vacation order by the Chief Administrative Hearing Officer (CAHO) is the final agency order (unless modified or vacated by the Attorney General). CAHO orders have their own OCAHO Reference Number and, for informational purposes, the original Administrative Law Judge (ALJ) order, labeled "modified" or "vacated" as appropriate, will appear immediately after the CAHO's order.
Published Decisions and Orders by Volume
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