What Immigration-Related Discrimination Do IER Rules Prohibit?

The Immigrant and Employee Rights Section (IER) of the Department of Justice Civil Rights Division enforces the anti-discrimination provision of the Immigration and Nationality Act, 8 U.S.C. 1324b. DOJ's rules are at 28 CFR Part 44. The law covers hiring, firing, recruitment or referral for a fee, and the Form I-9 and E-Verify process.

Prohibited practices. Under 8 U.S.C. 1324b and 28 CFR 44.200, an employer may not:

• Discriminate in hiring, firing, or recruitment or referral for a fee because of national origin.
• Discriminate because of citizenship status against a protected individual.
• Request more or different documents than the Form I-9 rules require, or refuse documents that reasonably appear genuine and relate to the person, when done to discriminate. These are called unfair documentary practices.
• Intimidate, threaten, coerce or retaliate against someone for asserting rights or taking part in an investigation or proceeding.

Who is protected. Protected individuals for citizenship status claims include U.S. citizens and nationals, lawful permanent residents, certain temporary residents, refugees and asylees, with limits for some permanent residents who do not seek naturalization on time (8 U.S.C. 1324b(a)(3)).

Coverage limits. The national origin and citizenship status discrimination provision does not apply to employers with three or fewer employees (8 U.S.C. 1324b(a)(2)). National origin claims covered under Title VII of the Civil Rights Act of 1964 are excluded, and a charge on the same facts cannot be filed with both IER and the EEOC (28 CFR 44.300(d)). Citizenship status preferences required by law, regulation, executive order or a government contract are also excluded.

Charges and timing. An injured party, someone authorized by that person, or a DHS officer may file a charge. Charges must be filed within 180 days of the alleged practice (28 CFR 44.300(b)). IER has 120 days to decide whether to file a complaint before an administrative law judge, and the charging party may file a complaint in some cases if IER does not (8 U.S.C. 1324b(d)).

Penalties. For penalties assessed after July 3, 2025, a first order for discrimination carries $590 to $4,730 per individual discriminated against, rising for later orders. Unfair documentary practices carry $236 to $2,364 per individual (28 CFR 85.5).

E-Verify connection. These rules apply during E-Verify use. The FAQ on when federal contractors must use E-Verify covers the contract clause. Treating workers differently based on perceived national origin, such as asking only some new hires for specific documents, can raise these issues.

Training. Training on acceptable documents and consistent treatment applies to HR staff who complete the Form I-9 and run E-Verify. That training fits within compliance training, and the FAQ on avoiding discrimination in reasonable suspicion decisions covers consistent treatment in another workplace process.