Justice Department Proposes to Expand Employer Liability for Immigration-Related Discrimination Claims
August 19, 2016

Country / Territory
The Justice Department has proposed a regulation that seeks to enhance its ability to enforce federal immigration-related anti-discrimination laws, with significant potential impact to employers. If implemented, the rule would increase employers’ exposure to discrimination claims.
The rule would give the Justice Department up to five years from the time of an alleged violation to bring a complaint or conduct an investigation. Currently, it is limited to 180 or 210 days to bring a complaint or investigate one. The agency would have the authority to waive the 180-day time limit for an individual employee to file a discrimination charge against an employer. Furthermore, the proposed rule would give expanded investigative powers to the agency, both in terms of what information it could access and from whom it could obtain information.
Employers would be liable for discrimination if they treat employees differently based on immigration status, regardless of their reasons for the different treatment, and even where the employer does not take adverse action against those employees – provisions that appear inconsistent with federal employment discrimination statutes.
Next Steps for the Proposed Rule
The proposed 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.
The Justice Department regulation is on a fast track and requires public comment by September 14, 2016. If your organization would like to submit feedback or you have questions about the proposed 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
Senior Manager William Diaz outlines the US visa options available to the games industry for bringing international talent to the United States, including O-1, L-1 and E-2.
Media mentions
Partner Jo Antoons and Manager Andreia Ghimis explain how businesses can navigate Europe’s new ETIAS pre-travel authorisation and avoid disruptions.
Media mentions
Partner Louise Haycock and Associate Jennifer Gray analyse the barriers and opportunities for overseas creatives navigating the UK’s immigration system.
Blog post
Associate Chloe Evans outlines eligibility criteria for individuals seeking British citizenship based on ancestral ties.
Fragomen news
Fragomen’s Semiconductor Industry Group publishes the next installment of its “Voice of the Industry” Q&A series, featuring Shari Liss, Vice President of Global Workforce Development and Initiatives at SEMI.
Media mentions
Partner Karolina Schiffter highlights how Poland’s tightened visa system affects foreign hiring and the challenges companies face in navigating it.
Media mentions
Partner Carl Hampe provides insight on the impact of the $100,000 H-1B fee and the US Chamber of Commerce’s related lawsuit.
Awards
Fragomen was honoured with the “Best Partnership Between a Corporate Organization and a Service Provider” EMMA at FEM's 2025 EMEA Summit.
Media mentions
Partner Rachel Beardsley highlights how H-2A visa strategies can help sustain a skilled US agricultural workforce.
Blog post
Director Willys Mac’Olale discusses how intra-African mobility can unlock the continent’s economic and social potential by promoting free movement, fostering integration and development.
Blog post
Immigration Director Adriana Martínez Garro explains the residency process in Costa Rica for families relocating with dependents, outlining key legal considerations and steps for securing status.
Media mentions
Fragomen contributed data showing how UK visa and health surcharge costs compare with other leading research nations.
Media mentions
Senior Manager William Diaz outlines the US visa options available to the games industry for bringing international talent to the United States, including O-1, L-1 and E-2.
Media mentions
Partner Jo Antoons and Manager Andreia Ghimis explain how businesses can navigate Europe’s new ETIAS pre-travel authorisation and avoid disruptions.
Media mentions
Partner Louise Haycock and Associate Jennifer Gray analyse the barriers and opportunities for overseas creatives navigating the UK’s immigration system.
Blog post
Associate Chloe Evans outlines eligibility criteria for individuals seeking British citizenship based on ancestral ties.
Fragomen news
Fragomen’s Semiconductor Industry Group publishes the next installment of its “Voice of the Industry” Q&A series, featuring Shari Liss, Vice President of Global Workforce Development and Initiatives at SEMI.
Media mentions
Partner Karolina Schiffter highlights how Poland’s tightened visa system affects foreign hiring and the challenges companies face in navigating it.
Media mentions
Partner Carl Hampe provides insight on the impact of the $100,000 H-1B fee and the US Chamber of Commerce’s related lawsuit.
Awards
Fragomen was honoured with the “Best Partnership Between a Corporate Organization and a Service Provider” EMMA at FEM's 2025 EMEA Summit.
Media mentions
Partner Rachel Beardsley highlights how H-2A visa strategies can help sustain a skilled US agricultural workforce.
Blog post
Director Willys Mac’Olale discusses how intra-African mobility can unlock the continent’s economic and social potential by promoting free movement, fostering integration and development.
Blog post
Immigration Director Adriana Martínez Garro explains the residency process in Costa Rica for families relocating with dependents, outlining key legal considerations and steps for securing status.
Media mentions
Fragomen contributed data showing how UK visa and health surcharge costs compare with other leading research nations.
