8 U.S.C. § 1324b
It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien, as defined in section 1324a(h)(3) of this title) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment-
Paragraph (1) shall not apply to-
As used in paragraph (1), the term "protected individual" means an individual who-
Notwithstanding any other provision of this section, it is not an unfair immigration-related employment practice for a person or other entity to prefer to hire, recruit, or refer an individual who is a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified.
It is also an unfair immigration-related employment practice for a person or other entity to intimidate, threaten, coerce, or retaliate against any individual for the purpose of interfering with any right or privilege secured under this section or because the individual intends to file or has filed a charge or a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section. An individual so intimidated, threatened, coerced, or retaliated against shall be considered, for purposes of subsections (d) and (g), to have been discriminated against.
A person's or other entity's request, for purposes of satisfying the requirements of section 1324a(b) of this title, for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1).
Except as provided in paragraph (2), any person alleging that the person is adversely affected directly by an unfair immigration-related employment practice (or a person on that person's behalf) or an officer of the Service alleging that an unfair immigration-related employment practice has occurred or is occurring may file a charge respecting such practice or violation with the Special Counsel (appointed under subsection (c)). Charges shall be in writing under oath or affirmation and shall contain such information as the Attorney General requires. The Special Counsel by certified mail shall serve a notice of the charge (including the date, place, and circumstances of the alleged unfair immigration-related employment practice) on the person or entity involved within 10 days.
No charge may be filed respecting an unfair immigration-related employment practice described in subsection (a)(1)(A) if a charge with respect to that practice based on the same set of facts has been filed with the Equal Employment Opportunity Commission under title VII of the Civil Rights Act of 1964 [ 42 U.S.C. 2000e et seq.], unless the charge is dismissed as being outside the scope of such title. No charge respecting an employment practice may be filed with the Equal Employment Opportunity Commission under such title if a charge with respect to such practice based on the same set of facts has been filed under this subsection, unless the charge is dismissed under this section as being outside the scope of this section.
The President shall appoint, by and with the advice and consent of the Senate, a Special Counsel for Immigration-Related Unfair Employment Practices (hereinafter in this section referred to as the "Special Counsel") within the Department of Justice to serve for a term of four years. In the case of a vacancy in the office of the Special Counsel the President may designate the officer or employee who shall act as Special Counsel during such vacancy.
The Special Counsel shall be responsible for investigation of charges and issuance of complaints under this section and in respect of the prosecution of all such complaints before administrative law judges and the exercise of certain functions under subsection (j)(1).
The Special Counsel is entitled to receive compensation at a rate not to exceed the rate now or hereafter provided for grade GS-17 of the General Schedule, under section 5332 of title 5.
The Special Counsel, in accordance with regulations of the Attorney General, shall establish such regional offices as may be necessary to carry out his duties.
The Special Counsel shall investigate each charge received and, within 120 days of the date of the receipt of the charge, determine whether or not there is reasonable cause to believe that the charge is true and whether or not to bring a complaint with respect to the charge before an administrative law judge. The Special Counsel may, on his own initiative, conduct investigations respecting unfair immigration-related employment practices and, based on such an investigation and subject to paragraph (3), file a complaint before such a judge.
If the Special Counsel, after receiving such a charge respecting an unfair immigration-related employment practice which alleges knowing and intentional discriminatory activity or a pattern or practice of discriminatory activity, has not filed a complaint before an administrative law judge with respect to such charge within such 120-day period, the Special Counsel shall notify the person making the charge of the determination not to file such a complaint during such period and the person making the charge may (subject to paragraph (3)) file a complaint directly before such a judge within 90 days after the date of receipt of the notice. The Special Counsel's failure to file such a complaint within such 120-day period shall not affect the right of the Special Counsel to investigate the charge or to bring a complaint before an administrative law judge during such 90-day period.
No complaint may be filed respecting any unfair immigration-related employment practice occurring more than 180 days prior to the date of the filing of the charge with the Special Counsel. This subparagraph shall not prevent the subsequent amending of a charge or complaint under subsection (e)(1).
Whenever a complaint is made that a person or entity has engaged in or is engaging in any such unfair immigration-related employment practice, an administrative law judge shall have power to issue and cause to be served upon such person or entity a copy of the complaint and a notice of hearing before the judge at a place therein fixed, not less than five days after the serving of the complaint. Any such complaint may be amended by the judge conducting the hearing, upon the motion of the party filing the complaint, in the judge's discretion at any time prior to the issuance of an order based thereon. The person or entity so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint.
Hearings on complaints under this subsection shall be considered before administrative law judges who are specially designated by the Attorney General as having special training respecting employment discrimination and, to the extent practicable, before such judges who only consider cases under this section.
Any person filing a charge with the Special Counsel respecting an unfair immigration-related employment practice shall be considered a party to any complaint before an administrative law judge respecting such practice and any subsequent appeal respecting that complaint. In the discretion of the judge conducting the hearing, any other person may be allowed to intervene in the proceeding and to present testimony.
The testimony taken by the administrative law judge shall be reduced to writing. Thereafter, the judge, in his discretion, upon notice may provide for the taking of further testimony or hear argument.
In conducting investigations and hearings under this subsection 1 and in accordance with regulations of the Attorney General, the Special Counsel and administrative law judges shall have reasonable access to examine evidence of any person or entity being investigated. The administrative law judges by subpoena may compel the attendance of witnesses and the production of evidence at any designated place or hearing. In case of contumacy or refusal to obey a subpoena lawfully issued under this paragraph and upon application of the administrative law judge, an appropriate district court of the United States may issue an order requiring compliance with such subpoena and any failure to obey such order may be punished by such court as a contempt thereof.
The administrative law judge shall issue and cause to be served on the parties to the proceeding an order, which shall be final unless appealed as provided under subsection (i).
If, upon the preponderance of the evidence, an administrative law judge determines that any person or entity named in the complaint has engaged in or is engaging in any such unfair immigration-related employment practice, then the judge shall state his findings of fact and shall issue and cause to be served on such person or entity an order which requires such person or entity to cease and desist from such unfair immigration-related employment practice.
Such an order also may require the person or entity-
In providing a remedy under subparagraph (B)(iii), back pay liability shall not accrue from a date more than two years prior to the date of the filing of a charge with the Special Counsel. Interim earnings or amounts earnable with reasonable diligence by the individual or individuals discriminated against shall operate to reduce the back pay otherwise allowable under such paragraph. No order shall require the hiring of an individual as an employee or the payment to an individual of any back pay, if the individual was refused employment for any reason other than discrimination on account of national origin or citizenship status.
In applying this subsection in the case of a person or entity composed of distinct, physically separate subdivisions each of which provides separately for the hiring, recruiting, or referring for employment, without reference to the practices of, and not under the control of or common control with, another subdivision, each such subdivision shall be considered a separate person or entity.
If upon the preponderance of the evidence an administrative law judge determines that the person or entity named in the complaint has not engaged and is not engaging in any such unfair immigration-related employment practice, then the judge shall state his findings of fact and shall issue an order dismissing the complaint.
In any complaint respecting an unfair immigration-related employment practice, an administrative law judge, in the judge's discretion, may allow a prevailing party, other than the United States, a reasonable attorney's fee, if the losing party's argument is without reasonable foundation in law and fact.
Not later than 60 days after the entry of such final order, any person aggrieved by such final order may seek a review of such order in the United States court of appeals for the circuit in which the violation is alleged to have occurred or in which the employer resides or transacts business.
Upon the filing of the record with the court, the jurisdiction of the court shall be exclusive and its judgment shall be final, except that the same shall be subject to review by the Supreme Court of the United States upon writ of certiorari or certification as provided in section 1254 of title 28.
If an order of the agency is not appealed under subsection (i)(1), the Special Counsel (or, if the Special Counsel fails to act, the person filing the charge) may petition the United States district court for the district in which a violation of the order is alleged to have occurred, or in which the respondent resides or transacts business, for the enforcement of the order of the administrative law judge, by filing in such court a written petition praying that such order be enforced.
Upon the filing of such petition, the court shall have jurisdiction to make and enter a decree enforcing the order of the administrative law judge. In such a proceeding, the order of the administrative law judge shall not be subject to review.
If, upon appeal of an order under subsection (i)(1), the United States court of appeals does not reverse such order, such court shall have the jurisdiction to make and enter a decree enforcing the order of the administrative law judge.
In any judicial proceeding under subsection (i) or this subsection, the court, in its discretion, may allow a prevailing party, other than the United States, a reasonable attorney's fee as part of costs but only if the losing party's argument is without reasonable foundation in law and fact.
The provisions of subsections (m) and (n) 2 of section 1324a of this title shall apply to any joint resolution under subparagraph (B) in the same manner as they apply to a joint resolution under subsection (l) 2 of such section.
1 So in original. Probably should be "section".
2 See References in Text note below.
8 U.S.C. § 1324b
EDITORIAL NOTES
REFERENCES IN TEXTThe Civil Rights Act of 1964, referred to in subsecs. (b)(2) and (l)(1), is Pub. L. 88-352, July 2, 1964, 78 Stat. 241. Title VII of the Civil Rights Act of 1964 is classified generally to subchapter VI (§2000e et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables.Subsections (j), (l), (m), and (n) of section 1324a of this title, referred to in subsec. (k), were repealed by Pub. L. 104-208, div. C, title IV, §412(c), Sept. 30, 1996, 110 Stat. 3009-668.
AMENDMENTS1996-Subsec. (a)(3)(B). Pub. L. 104-208, §671(d)(1)(B), struck out ", 1161(a)," after "section 1160(a)".Subsec. (a)(6). Pub. L. 104-208, §421(a), substituted "A person's" for "For purposes of paragraph (1), a person's" and "if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1)" for "relating to the hiring of individuals". 1994-Subsec. (g)(2)(C). Pub. L. 103-416 substituted "the Special Counsel" for "an administrative law judge" in first sentence. 1991-Subsec. (g)(2)(B)(iv)(II). Pub. L. 102-232, §306(b)(1), substituted "subclauses (III) and (IV)" for "subclause (IV)".Subsec. (g)(2)(B)(iv)(IV). Pub. L. 102-232, §306(b)(3)(A), substituted a semicolon for period at end. Subsec. (g)(2)(B)(v), (vi). Pub. L. 102-232, §306(b)(3)(B), substituted semicolons for commas at end.Subsec. (g)(2)(B)(vii). Pub. L. 102-232, §306(b)(3)(C), (D), substituted a semicolon for comma at end and "to remove (in an appropriate case)" for "to order (in an appropriate case) the removal of".Subsec. (g)(2)(B)(viii). Pub. L. 102-232, §306(b)(3)(E), substituted "to lift (in an appropriate case)" for "to order (in an appropriate case) the lifting of". Subsec. (g)(2)(D). Pub. L. 102-232, §306(c)(1), substituted "physically" for "physicially".1990-Subsec. (a)(1)(B). Pub. L. 101-649, §533(a)(1), substituted "protected individual" for "citizen or intending citizen".Subsec. (a)(3). Pub. L. 101-649, §533(a)(2), (3), in heading and text substituted "protected individual" for "citizen or intending citizen".Subsec. (a)(3)(B). Pub. L. 101-649, §533(a)(4), substituted "is an alien who is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under section 1160(a), 1161(a),or 1255a(a)(1) of this title, is admitted as a refugee under section 1157 of this title, or is granted asylum under section 1158 of this title; but does not" for "is an alien who-"(i) is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under section 1160(a), 1161(a),or 1255a(a)(1) of this title, is admitted as a refugee under section 1157 of this title, or is granted asylum under section 1158 of this title, and"(ii) evidences an intention to become a citizen of the United States through completing a declaration of intention to become a citizen;but does not", and in closing provisions substituted "(i)" and "(ii)" for "(I)" and "(II)", respectively. Pub. L. 101-649, §532(a), inserted reference to sections 1160(a) and 1161(a) of this title in cl. (i). Subsec. (a)(5). Pub. L. 101-649, §534(a), added par. (5). Subsec. (a)(6). Pub. L. 101-649, §535(a), added par. (6). Subsec. (d)(2). Pub. L. 101-649, §537(a), inserted "the Special Counsel shall notify the person making the charge of the determination not to file such a complaint during such period and" after "120-day period,", inserted "within 90 days after the date of receipt of the notice" before period at end, and inserted at end "The Special Counsel's failure to file such a complaint within such 120-day period shall not affect the right of the Special Counsel to investigate the charge or to bring a complaint before an administrative law judge during such 90-day period."Subsec. (g)(2)(B)(iii). Pub. L. 101-649, §539(a)(1), struck out "and" at end.Subsec. (g)(2)(B)(iv). Pub. L. 101-649, §539(a)(2), which directed the substitution of a comma for the period at end of cl. (iv)(II), could not be executed because of the general amendment of cl. (iv) by Pub. L. 101-649, §536(a), see below. Pub. L. 101-649, §536(a), amended cl. (iv) generally. Prior to amendment, cl. (iv) read as follows:"(I) except as provided in subclause (II), to pay a civil penalty of not more than $1,000 for each individual discriminated against, and"(II) in the case of a person or entity previously subject to such an order, to pay a civil penalty of not more than $2,000 for each individual discriminated against."Subsec. (g)(2)(B)(v) to (viii). Pub. L. 101-649, §539(a)(3), added cls. (v) to (viii).Subsec. (l). Pub. L. 101-649, §531, added subsec. (l).1988-Subsec. (a)(1). Pub. L. 100-525, §2(b)(1), inserted reference to section 1324a(h)(3) of this title.Subsec. (e)(3). Pub. L. 100-525, §2(b)(2), struck out "said" before "proceeding".Subsec. (g)(2)(A). Pub. L. 100-525, §2(b)(3), substituted "that" for "that that". Subsec. (g)(2)(B)(ii). Pub. L. 100-525, §2(b)(4), substituted "1324a" for "1324".Subsec. (g)(3). Pub. L. 100-525, §2(b)(5), substituted "engaged and" for "engaged or".Subsec. (h). Pub. L. 100-525, §2(b)(6), substituted "attorney's" for "attorneys' " in heading.
STATUTORY NOTES AND RELATED SUBSIDIARIES
EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104-208, div. C, title IV, §421(b), Sept. 30, 1996, 110 Stat. 3009-670, provided that: "The amendments made by subsection (a) [amending this section] shall apply to requests made on or after the date of the enactment of this Act [Sept. 30, 1996]."
EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103-416 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101-649 see section 219(dd) of Pub. L. 103-416 set out as a note under section 1101 of this title.
EFFECTIVE DATE OF 1991 AMENDMENT Amendment by Pub. L. 102-232 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101-649 see section 310(1) of Pub. L. 102-232 set out as a note under section 1101 of this title.
EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101-649, title V, §532(b), Nov. 29, 1990, 104 Stat. 5054, provided that: "The amendment made by subsection (a) [amending this section] shall apply to actions occurring on or after the date of the enactment of this Act [Nov. 29, 1990]." Pub. L. 101-649, title V, §533(b), Nov. 29, 1990, 104 Stat. 5055, provided that: "The amendments made by subsection (a) [amending this section] shall apply to unfair immigration-related employment practices occurring before, on, or after the date of the enactment of this Act [Nov. 29, 1990]." Pub. L. 101-649, title V, §534(b), Nov. 29, 1990, 104 Stat. 5055, provided that: "The amendment made by subsection (a) [amending this section] shall apply to actions occurring on or after the date of the enactment of this Act [Nov. 29, 1990]." Pub. L. 101-649, title V, §535(b), Nov. 29, 1990, 104 Stat. 5055, provided that: "The amendment made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Nov. 29, 1990], but shall apply to actions occurring on or after such date." Pub. L. 101-649, title V, §536(b), Nov. 29, 1990, 104 Stat. 5056, provided that: "The amendments made by this section [amending this section] shall apply to unfair immigration-related employment practices occurring after the date of the enactment of this Act [Nov. 29, 1990]." Pub. L. 101-649, title V, §537(b), Nov. 29, 1990, 104 Stat. 5056, provided that: "The amendments made by subsection (a) [amending this section] shall apply to charges received on or after the date of the enactment of this Act [Nov. 29, 1990]." Pub. L. 101-649, title V, §539(b), Nov. 29, 1990, 104 Stat. 5057, provided that: "The amendments made by subsection (a) [amending this section] shall apply to orders with respect to unfair immigration-related employment practices occurring on or after the date of the enactment of this Act [Nov. 29, 1990]."
EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-525 effective as if included in enactment of Immigration Reform and Control Act of 1986, Pub. L. 99-603, see section 2(s) of Pub. L. 100-525 set out as a note under section 1101 of this title.
ABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF FUNCTIONSFor abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
REFERENCES IN OTHER LAWS TO GS-16, 17, OR 18 PAY RATESReferences in laws to the rates of pay for GS-16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, §101(c)(1)] of Pub. L. 101-509 set out in a note under section 5376 of Title 5.
NO EFFECT ON EEOC AUTHORITYPub. L. 99-603, title I, §102(b), Nov. 6, 1986, 100 Stat. 3379, provided that: "Except as may be specifically provided in this section, nothing in this section shall be construed to restrict the authority of the Equal Employment Opportunity Commission to investigate allegations, in writing and under oath or affirmation, of unlawful employment practices, as provided in section 706 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e-5 ), or any other authority provided therein."
- Attorney General
- The term "Attorney General" means the Attorney General of the United States.
- Service
- The term "Service" means the Immigration and Naturalization Service of the Department of Justice.
- State
- The term "State" includes the District of Columbia, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands.
- administrator
- The term "administrator" means the official designated by the Secretary of State pursuant to section 1104(b) of this title.
- alien
- The term "alien" means any person not a citizen or national of the United States.
- lawfully admitted for permanent residence
- The term "lawfully admitted for permanent residence" means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.
- national of the United States
- The term "national of the United States" means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.
- national
- The term "national" means a person owing permanent allegiance to a state.
- naturalization
- The term "naturalization" means the conferring of nationality of a state upon a person after birth, by any means whatsoever.
- organization
- The term "organization" means, but is not limited to, an organization, corporation, company, partnership, association, trust, foundation or fund; and includes a group of persons, whether or not incorporated, permanently or temporarily associated together with joint action on any subject or subjects.
- permanent
- The term "permanent" means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.
- person
- The term "person" means an individual or an organization.
- refugee
- The term "refugee" means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or (B) in such special circumstances as the President after appropriate consultation (as defined in section 1157(e) of this title) may specify, any person who is within the country of such person's nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term "refugee" does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.
- residence
- The term "residence" means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.
- admitted
- The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.