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 eligibility 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 that the ALJs have received the requisite training in employment discrimination matters as required by statute.
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 for a fee after November 6, 1986, the date of enactment of the Immigration Reform and Control Act (IRCA).
If an investigation by 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 Case Assignment, thus setting the adjudicative process in motion.
The Notice 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 or 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 protected 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 fewer 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 for employment eligibility verification under 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 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 undermine 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.