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(2) ‘‘person’’, in addition to its meaning under section 1 of title 1,
includes a governmental authority.
§ 11302. Immigration-related unfair employment practices
(a) IMMIGRATION-RELATED UNFAIR EMPLOYMENT PRACTICES.—It is an
immigration-related unfair employment practice for a person—
(1) to discriminate against an individual (except an unauthorized
alien as defined in section 11101 of this title) in hiring, or recruiting
or referring for employment for a fee, the individual or discharging the
individual from employment because of the individual’s national origin
or, if the individual is a protected individual, because of the individual’s
citizenship status; or
(2) after November 28, 1990, to intimidate, threaten, coerce, or re-
taliate against an individual—
(A) for the purpose of interfering with a right or privilege under
this chapter; or
(B) because the individual intends to file or has filed a charge
or complaint or assisted or participated in an investigation, hear-
ing, or proceeding under this chapter.
(b) CERTAIN DOCUMENT PRACTICES AS BEING UNFAIR.—After Novem-
ber 28, 1990, it is deemed to be an immigration-related unfair employment
practice under subsection (a)(1) of this section related to the hiring of an
individual, for a person to request, to satisfy the requirements of section
11103 of this title, more or different documents than are required under
section 11103 or to refuse to honor a document that on its face reasonably
appears to be genuine.
(c) NONAPPLICATION.—Subsection (a)(1) of this section does not apply
to—
(1) a person employing fewer than 4 employees;
(2) discrimination by a person because of an individual’s national or-
igin if the discrimination by that person against that individual is cov-
ered by section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–
2); or
(3) discrimination because of citizenship status that is—
(A) required to comply with a law, a regulation, or an executive
order;
(B) required by a contract of the United States Government or
a State or local government; or
(C) found by the Attorney General to be essential for an em-
ployer to do business with an agency or a State or local govern-
mental authority.
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(d) PREFERENCE FOR EQUALLY QUALIFIED NATIONALS.—It is not an
immigration-related unfair employment practice for a person to hire, recruit,
or refer an individual who is a national of the United States instead of an
individual who is an alien if both individuals are equally qualified.
§ 11303. Special Counsel for Immigration-Related Unfair
Employment Practices
(a) APPOINTMENT.—The President shall appoint, by and with the advice
and consent of the Senate, a Special Counsel for Immigration-Related Un-
fair Employment Practices. The Special Counsel serves in the Department
of Justice for a term of 4 years. When the position is vacant, the President
may designate an officer or employee of the United States Government to
act as Special Counsel during the vacancy.
(b) DUTIES AND POWERS.—The Special Counsel shall carry out the du-
ties and powers given the Special Counsel under this chapter.
(c) DISSEMINATION
OF INFORMATION.—(1) In cooperation with the
Chairman of the Equal Employment Opportunity Commission, the Secretary
of Labor, and the Administrator of the Small Business Administration, the
Special Counsel shall conduct a campaign—
(A) to disseminate information on the rights and remedies prescribed
under this chapter and title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.) related to immigration-related unfair employment
practices; and
(B) to increase the knowledge of employers, employees, and the pub-
lic about employer and employee rights, responsibilities, and remedies
under this chapter and title VII.
(2) To carry out this subsection, the Special Counsel—
(A) to the extent considered appropriate and subject to the availabil-
ity of appropriations, may make contracts with public and private orga-
nizations for outreach activities under the campaign; and
(B) shall consult with the Chairman, the Secretary, and the heads
of other appropriate agencies.
(3) Not more than $10,000,000 may be appropriated for each fiscal year
to carry out this subsection.
(d) OUTREACH PROGRAMS.—Not more than $3,000,000 of the unobli-
gated balances remaining in the account described in section 9307(b) of this
title is available in each fiscal year for grants, contracts, and cooperative
agreements to community-based organizations for outreach programs and
shall be administered by the Special Counsel for Immigration-Related Un-
fair Employment Practices. Amounts under this subsection are in addition
to amounts appropriated to the Special Counsel for those purposes.
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Amounts available under this subsection may not be used by the Special
Counsel to establish regional offices.
(e) PAY.—The Special Counsel is entitled to a rate of pay that is not
more than the maximum annual rate of basic pay payable under section
5376 of title 5.
(f) REGIONAL OFFICES.—Under regulations prescribed by the Attorney
General, the Special Counsel shall establish regional offices necessary to
carry out the duties and powers of the Special Counsel.
§ 11304. Filing charges of unfair practices
(a) FILING CHARGES.—(1) Except as provided in subsection (c) of this
section, a charge of an immigration-related unfair employment practice may
be filed with the Special Counsel for Immigration-Related Unfair Employ-
ment Practices by—
(A) a person alleging to be adversely affected directly by the practice,
or by another person for that person; or
(B) an officer of the Immigration and Naturalization Service alleging
that the practice has occurred or is occurring.
(2) A charge filed under this subsection must be in writing and under
oath and contain information the Attorney General requires.
(b) SERVICE OF NOTICE OF CHARGES.—The Special Counsel shall serve
a notice of a charge filed under subsection (a) of this section (including the
date, place, and circumstances of the alleged practice) on the person alleged
to have committed the practice. The notice shall be served by certified mail
not later than 10 days after the charge is filed.
(c) LIMITATIONS ON FILING CHARGES.—A charge of an immigration-re-
lated unfair employment practice involving discrimination because of na-
tional origin may not be filed under this section if a charge of 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 title VII. A charge about an employment practice may not be filed
with the Equal Employment Opportunity Commission under title VII if a
charge about that practice based on the same set of facts has been filed
under this section, unless the charge is dismissed as being outside the scope
of this chapter.
§ 11305. Investigating charges and filing complaints
(a) SPECIAL COUNSEL.—(1) The Special Counsel for Immigration-Relat-
ed Unfair Employment Practices shall investigate each charge filed under
section 11304 of this title. Not later than 120 days after the charge has
been filed, the Special Counsel shall decide whether there is reasonable
258
cause to believe the charge is true and whether to file a complaint about
the charge with an administrative law judge.
(2) On the Special Counsel’s own initiative, the Special Counsel may in-
vestigate an immigration-related unfair employment practice and, subject to
subsection (c) of this section, file a complaint about the practice with an
administrative law judge.
(3) Failure to file a complaint within the 120-day period does not prevent
the Special Counsel from investigating the charge or filing a complaint with
an administrative law judge during the 90-day period referred to in sub-
section (b) of this section.
(b) PRIVATE ACTIONS.—Subject to subsection (c) of this section, if a
charge alleges knowing and intentional discriminatory activity or a pattern
or practice of discriminatory activity, and the Special Counsel does not file
a complaint with an administrative law judge within 120 days after the
charge is filed with the Special Counsel under subsection (a)(1) of this sec-
tion, the Special Counsel shall notify the person that filed the charge during
the 120-day period of the decision not to file a complaint. The person may
file a complaint directly with an administrative law judge not later than 90
days after receiving the notice.
(c) TIME LIMITATION.—A complaint about an immigration-related unfair
employment practice may not be filed with an administrative law judge if
the practice occurred more than 180 days before the charge about that
practice was filed with the Special Counsel. This subsection does not prevent
subsequently amending a charge or complaint under section 11306(c)(1) of
this title.
(d) DISCRIMINATION DEEMED TO HAVE OCCURRED.—An individual in-
timidated, threatened, coerced, or retaliated against in violation of section
11302(a)(2) of this title is deemed to have been discriminated against under
this section.
§ 11306. Hearings on complaints
(a) DESIGNATING ADMINISTRATIVE LAW JUDGES.—A hearing on a com-
plaint alleging an immigration-related unfair employment practice shall be
conducted by an administrative law judge who—
(1) is specially designated by the Attorney General as having special
training in employment discrimination; and
(2) to the extent possible, conducts hearings only on complaints in-
volving immigration-related unfair employment practices under this
chapter.
(b) NOTICE OF HEARINGS.—When a complaint alleging an immigration-
related unfair employment practice is filed with an administrative law judge,
the judge shall issue and have served on the person named in the complaint