Justice Department Broadens Employer Liability for Immigration-Related Employment Discrimination Claims
December 21, 2016

Country / Territory
United States
In a final regulation published this week, the Department of Justice has made significant changes to the way it enforces federal immigration-related anti-discrimination laws. The new rule means that employers have greater exposure to immigration-related discrimination claims and increased liability. The rule takes effect on January 18, 2017.
The Justice Department rule broadens the definition of discrimination to include any intentional treatment that differentiates between employees because of national origin or citizenship status, regardless of the reason for difference. It also broadens the definition of “hiring” to include actions taken during the recruitment process. It gives the Department up to five years from the time of an alleged violation to file a complaint or conduct an investigation. Previously, it was limited to 180 or 210 days to bring a complaint or investigate one. The Department in this rule gives itself the authority to waive the 180-day limit for an individual employee to file a discrimination charge against an employer. The rule also gives the Justice Department expanded investigative powers, both in terms of what information it may access and from whom it may obtain the information.
The regulation comes in the wake of a substantial increase in civil fines against employers who commit immigration-related offenses, including Form I-9 and E-Verify violations, the unlawful employment of foreign nationals, unfair immigration employment practices, and H-1B and H-2B program violations.
What the New Rule Means for Employers
The new regulation means that employers can be found liable for immigration-related employment discrimination if they take actions during the recruitment, hiring or onboarding process that differentiate between employees on the basis of national origin or citizenship status, regardless of their reasons for the treatment, and even where the employer does not take adverse action against those employees. This can include circumstances in which an employer attempts to help noncitizen employees stay current with work eligibility in the United States but misunderstands the laws regarding reverification of work authorization.
If you have questions about the rule, please contact the immigration professional with whom you work at Fragomen or contact Patrick Shen, a partner in Fragomen’s Government Strategies and Compliance Group and who served as the Justice Department’s Special Counsel for Immigration-Related Unfair Employment Practices before joining the firm. This alert is for informational purposes only.
Country / Territory
Explore more at Fragomen

Media mentions
Pittsburgh Managing Partner Alex Castrodale and Associate Adam Teets highlight the need for US employers to prepare for unannounced immigration compliance checks.

Blog post
Associates Stephanie Fitton and Halil Kaya and Paralegal Marcus Alexander Lang-Rawlings discuss how UK changes to the Skilled Worker visa in 2025 are reshaping sports sector employment.

Blog post
Assistant Business Immigration Managers Jeszel Panistante-Cabral, Elsie Lim and Nellanie Quimson explore the complexities young professionals face entering the workforce and the evolving hiring landscape in Singapore.

Blog post
Director David Iannella discusses Fragomen Germany’s approach to outbound immigration solutions and how the office supports global mobility through visa services and compliance expertise.

Blog post
Corporate Services Manager Asfandyar Sheikh and Assistant Corporate Services Manager Ka-Ying Leung discuss Saudi Arabia’s push for corporate transparency through new ownership disclosure rules.

Video
In this video, we share an overview of Fragomen's posted worker compliance solutions.

Blog post
Partner Jo Antoons and Managers Sara Fekete and Andreia Florina Ghimis explore how digitalization is reshaping European compliance programs and share how organizations can prepare with Fragomen’s support.

Media mentions
Partner Rajiv Naik examines how the UK’s industrial strategy and immigration reforms will reshape talent access and create new opportunities for HR and mobility teams.

Media mentions
Partner Audrea Golding discusses recent changes requiring most H-1B visa holders and certain dependents to complete in-person interviews abroad for visa renewals.

Podcast
Partner Cosmina Morariu and Business Immigration Manager Ayana Ibrahimi are joined by Lara Dyer, Chief Program Officer (Americas) at Talent Beyond Boundaries, to explore Canada’s EMPP.

Blog post
Director Johannes Kgotso Tiba explains the legal process and key considerations for individuals seeking to regain South African citizenship after renunciation or loss.

Blog post
Partner Kenneth Lau discusses the development and implications of Vietnam's updated work permit regulations.

Media mentions
Pittsburgh Managing Partner Alex Castrodale and Associate Adam Teets highlight the need for US employers to prepare for unannounced immigration compliance checks.

Blog post
Associates Stephanie Fitton and Halil Kaya and Paralegal Marcus Alexander Lang-Rawlings discuss how UK changes to the Skilled Worker visa in 2025 are reshaping sports sector employment.

Blog post
Assistant Business Immigration Managers Jeszel Panistante-Cabral, Elsie Lim and Nellanie Quimson explore the complexities young professionals face entering the workforce and the evolving hiring landscape in Singapore.

Blog post
Director David Iannella discusses Fragomen Germany’s approach to outbound immigration solutions and how the office supports global mobility through visa services and compliance expertise.

Blog post
Corporate Services Manager Asfandyar Sheikh and Assistant Corporate Services Manager Ka-Ying Leung discuss Saudi Arabia’s push for corporate transparency through new ownership disclosure rules.

Video
In this video, we share an overview of Fragomen's posted worker compliance solutions.

Blog post
Partner Jo Antoons and Managers Sara Fekete and Andreia Florina Ghimis explore how digitalization is reshaping European compliance programs and share how organizations can prepare with Fragomen’s support.

Media mentions
Partner Rajiv Naik examines how the UK’s industrial strategy and immigration reforms will reshape talent access and create new opportunities for HR and mobility teams.

Media mentions
Partner Audrea Golding discusses recent changes requiring most H-1B visa holders and certain dependents to complete in-person interviews abroad for visa renewals.

Podcast
Partner Cosmina Morariu and Business Immigration Manager Ayana Ibrahimi are joined by Lara Dyer, Chief Program Officer (Americas) at Talent Beyond Boundaries, to explore Canada’s EMPP.

Blog post
Director Johannes Kgotso Tiba explains the legal process and key considerations for individuals seeking to regain South African citizenship after renunciation or loss.

Blog post
Partner Kenneth Lau discusses the development and implications of Vietnam's updated work permit regulations.