28 C.F.R. § 44.101

Current through November 30, 2024

Section 44.101 - Definitions

For purposes of 8 U.S.C. 1324b and this part:

(a)Charge means a written statement in any language that-

(1) Is made under oath or affirmation;

(2) Identifies the charging party's name, address, and telephone number;

(3) Identifies the injured party's name, address, and telephone number, if the charging party is not the injured party;

(4) Identifies the name and address of the person or other entity against whom the charge is being made;

(5) Includes a statement sufficient to describe the circumstances, place, and date of an alleged unfair immigration-related employment practice;

(6) Indicates whether the basis of the alleged unfair immigration-related employment practice is discrimination based on national origin, citizenship status, or both; or involves intimidation or retaliation; or involves unfair documentary practices;

(7) Indicates the citizenship status of the injured party;

(8) Indicates, if known, the number of individuals employed on the date of the alleged unfair immigration-related employment practice by the person or other entity against whom the charge is being made;

(9) Is signed by the charging party and, if the charging party is neither the injured party nor an officer of the Department of Homeland Security, indicates that the charging party has the authorization of the injured party to file the charge;

(10) Indicates whether a charge based on the same set of facts has been filed with the Equal Employment Opportunity Commission, and if so, the specific office and contact person (if known); and

(11) Authorizes the Special Counsel to reveal the identity of the injured or charging party when necessary to carry out the purposes of this part.

(b)Charging party means-

(1) An injured party who files a charge with the Special Counsel;

(2) An individual or entity authorized by an injured party to file a charge with the Special Counsel that alleges that the injured party is adversely affected directly by an unfair immigration-related employment practice; or

(3) An officer of the Department of Homeland Security who files a charge with the Special Counsel that alleges that an unfair immigration-related employment practice has occurred or is occurring.

(c)Citizenship status means an individual's status as a U.S. citizen or national, or non-U.S. citizen, including the immigration status of a non-U.S. citizen.

(d)Complaint means a written submission filed with the Office of the Chief Administrative Hearing Officer (OCAHO) under 28 CFR part 68 by the Special Counsel or by a charging party, other than an officer of the Department of Homeland Security, alleging one or more unfair immigration-related employment practices under 8 U.S.C. 1324b .

(e)Discriminate as that term is used in 8 U.S.C. 1324b(a) means the act of intentionally treating an individual differently from other individuals because of national origin or citizenship status, regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility.

(f) The phrase "for purposes of satisfying the requirements of section 1324a(b)," as that phrase is used in 8 U.S.C. 1324b(a)(6) , means for the purpose of completing the employment eligibility verification form designated in 8 CFR 274a.2 , or for the purpose of making any other efforts to verify an individual's employment eligibility, including the use of "E-Verify" or any other electronic employment eligibility verification program.

(g) An act done "for the purpose or with the intent of discriminating against an individual in violation of [1324(a)(1)]," as that phrase is used in 8 U.S.C. 1324b(a)(6) , means an act of intentionally treating an individual differently based on national origin or citizenship status in violation of 8 U.S.C. 1324b(a)(1) , regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility.

(h)Hiring means all conduct and acts during the entire recruitment, selection, and onboarding process undertaken to make an individual an employee.

(i)Injured party means an individual who claims to be adversely affected directly by an unfair immigration-related employment practice.

(j) The phrase "more or different documents than are required under such section," as that phrase is used in 8 U.S.C. 1324b(a)(6) , includes any limitation on an individual's choice of acceptable documentation to present to satisfy the requirements of 8 U.S.C. 1324a(b) .

(k)Protected individual means an individual who-

(1) Is a citizen or national of the United States;

(2) Is an alien who is lawfully admitted for permanent residence, other than an alien who-

(i) 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; or

(ii) Has applied on a timely basis, but has not been naturalized as a citizen within two years after the date of the application, unless the alien can establish that he or she is actively pursuing naturalization, except that time consumed in the Department of Homeland Security's processing of the application shall not be counted toward the two-year period;

(3) Is granted the status of an alien lawfully admitted for temporary residence under 8 U.S.C. 1160(a) or 8 U.S.C. 1255a(a)(1);

(4) Is admitted as a refugee under 8 U.S.C. 1157 ; or

(5) Is granted asylum under 8 U.S.C. 1158 .

(l)Recruitment or referral for a fee has the meaning given the terms "recruit for a fee" and "refer for a fee," respectively, in 8 CFR 274a.1 , and includes all conduct and acts during the entire recruitment or referral process.

(m)Respondent means a person or other entity who is under investigation by the Special Counsel, as identified in the written notice required by §44.301(a) or §44.304(a).

(n)Special Counsel means the Special Counsel for Immigration-Related Unfair Employment Practices appointed by the President under 8 U.S.C. 1324b , or a duly authorized designee.

28 C.F.R. §44.101

Order No. 1225-87, 52 FR 37409, 10/6/1987, as amended by Order No. 1520-91, 56 FR 40249, 8/14/1991; Order No. 1807-93, 58 FR 59948, 11/12/1993; 81 FR 91789 , 1/18/2017