(a) Proposed final order. (1) Within twenty (20) days of filing of the transcript of the testimony, or within such additional time as the Administrative Law Judge may allow, the Administrative Law Judge may require the parties to file proposed findings of fact, conclusions of law, and orders, together with supporting briefs expressing the reasons for such proposals. Such proposals and briefs shall be served on all parties and shall refer to all portions of the record and to all authorities relied upon in support of each proposal.
(2) The Administrative Law Judge may, by order, require that when a proposed order is filed for the Administrative Law Judge's consideration, the filing party shall submit to the Administrative Law Judge a copy of the proposed order on a 3.5″ microdisk.
(b) Entry of final order. Unless an extension of time is given by the Chief Administrative Hearing Officer for good cause, the Administrative Law Judge shall enter the final order within sixty (60) days after receipt of the hearing transcript or of post-hearing briefs, proposed findings of fact, and conclusions of law, if any, by the Administrative Law Judge. The final order entered by the Administrative Law Judge shall be based upon the whole record. It shall be supported by reliable and probative evidence. The standard of proof shall be by a preponderance of the evidence.
(c) Contents of final order with respect to unlawful employment of unauthorized aliens. (1) If, upon the preponderance of the evidence, the Administrative Law Judge determines that a person or entity named in the complaint has violated section 274A(a)(1)(A) or (a)(2) of the INA, the final order shall require the person or entity to cease and desist from such violations and to pay a civil penalty in an amount of:
(i) Not less than $275 and not more than $2,200 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring before March 27, 2008; not less than $375 and not more than $3,200 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring on or after March 27, 2008;
(ii) In the case of a person or entity previously subject to one final order under this paragraph (c)(1), not less than $2,200 and not more than $5,500 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring before March 27, 2008, and not less than $3,200 and not more than $6,500 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring on or after March 27, 2008; or
(iii) In the case of a person or entity previously subject to more than one final order under paragraph (c)(1) of this section, not less than $3,300 and not more than $11,000 for each unauthorized alien with respect to whom there was a violation of each such paragraph occurring before March 27, 2008, and not less than $4,300 and not more than $16,000 for each unauthorized alien with respect to whom there was a violation of each such paragraph occurring on or after March 27, 2008.
(2) The final order may also require the respondent to participate in, and comply with the terms of, one of the pilot programs set forth in Pub. L. 104-208, Div. C, sections 401-05, 110 Stat. 3009, 3009-655 to 3009-665 (1996) (codified at 8 U.S.C. 1324a (note)), with respect to the respondent's hiring or recruitment or referral of individuals in a state (as defined in section 101(a)(36) of the INA) covered by such a program.
(3) The final order may also require the respondent to comply with the requirements of section 274A(b) of the INA with respect to individuals hired (or recruited or referred for employment for a fee) during a period of up to three years; and to take such other remedial action as is appropriate.
(4) 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 under the control of, or common control with, another subdivision, each such subdivision shall be considered a separate person or entity.
(5) If, upon a preponderance of the evidence, the Administrative Law Judge determines that a person or entity named in the complaint has violated section 274A(a)(1)(B) of the INA, except as set forth in paragraph (c)(6) of this section, the final order under this paragraph shall require the person or entity to pay a civil penalty in an amount of not less than $100 and not more than $1,000 for each individual with respect to whom such violation occurred before March 15, 1999, and not less than $110 and not more than $1,100 for each individual with respect to whom such violation occurred on or after March 15, 1999. In determining the amount of the penalty, due consideration shall be given to the size of the business of the employer being charged, the good faith of the employer, the seriousness of the violation, whether or not the individual was an unauthorized alien, and the history of previous violations.
(6) With respect to a violation of section 274A(a)(1)(B) of the INA where a person or entity participating in a pilot program has failed to provide notice of final nonconfirmation of employment eligibility of an individual to the Attorney General as required by Pub. L. 104-208, Div. C, section 403(a)(4)(C), 110 Stat. 3009, 3009-661 (1996) (codified at 8 U.S.C. 1324a (note)), the final order under this paragraph shall require the person or entity to pay a civil penalty in an amount of not less than $500 and not more than $1,000 for each individual with respect to whom such violation occurred before March 27, 2008, and not less than $550 and not more than $1,100 for each individual with respect to whom such violation occurred on or after March 27, 2008.
(7) Prohibition of indemnity bond cases. If, upon the preponderance of the evidence, the Administrative Law Judge determines that a person or entity has violated section 274A(g)(1) of the INA, the final order shall require the person or entity to pay a civil penalty of $1,000 for each individual with respect to whom such violation occurred before March 15, 1999, and $1,100 for each individual with respect to whom such violation occurred on or after March 15, 1999, and require the return of any amounts received in such violation to the individual or, if the individual cannot be located, to the general fund of the Treasury.
(8) Civil penalties assessed after August 1, 2016. For civil penalties assessed after August 1, 2016, whose associated violations described in paragraph (c) of this section occurred after November 2, 2015, the applicable civil penalty amounts are set forth in 28 CFR 85.5.
(9) Attorney's fees. A prevailing respondent may receive, pursuant to 5 U.S.C. 504, an award of attorney's fees in unlawful employment and prohibition of indemnity bond cases. Any application for attorney's fees shall be accompanied by an itemized statement from the attorney or representative, stating the actual time expended and the rate at which fees and other expenses were computed. An award of attorney's fees will not be made if the Administrative Law Judge determines that the complainant's position was substantially justified or special circumstances make the award unjust.
(d) Contents of final order with respect to unfair immigration-related employment practice cases. (1) If, upon the preponderance of the evidence, the Administrative Law Judge determines that any person or entity named in the complaint has engaged in or is engaging in an unfair immigration-related employment practice, the final order shall include a requirement that the person or entity cease and desist from such practice. The final order may also require the person or entity:
(i) To comply with the requirements of section 274A(b) of the INA with respect to individuals hired (or recruited or referred for employment for a fee) during a period of up to three years;
(ii) To retain for a period of up to three years, and only for purposes consistent with section 274A(b)(5) of the INA, the name and address of each individual who applies, in person or in writing, for hiring for an existing position, or for recruiting or referring for a fee, for employment in the United States;
(iii) To hire individuals directly and adversely affected, with or without back pay;
(iv) To post notices to employees about their rights under section 274B and employers' obligations under section 274A;
(v) To educate all personnel involved in hiring and in complying with section 274A or 274B about the requirements of 274A or 274B;
(vi) To order, in an appropriate case, the removal of a false performance review or false warning from an employee's personnel file;
(vii) To order, in an appropriate case, the lifting of any restrictions on an employee's assignments, work shifts, or movements;
(viii) Except as provided in paragraph (d)(1)(xii) of this section, to pay a civil penalty of not less than $275 and not more than $2,200 for each individual discriminated against before March 27, 2008, and not less than $375 and not more than $3,200 for each individual discriminated against on or after March 27, 2008;
(ix) Except as provided in paragraph (d)(1)(xii) of this section, in the case of a person or entity previously subject to a single final order under section 274B(g)(2) of the INA, to pay a civil penalty of not less than $2,200 and not more than $5,500 for each individual discriminated against before March 27, 2008, and not less than $3,200 and not more than $6,500 for each individual discriminated against on or after March 27, 2008;
(x) Except as provided in paragraph (d)(1)(xii) of this section, in the case of a person or entity previously subject to more than one final order under section 274B(g)(2) of the INA, to pay a civil penalty of not less than $3,300 and not more than $11,000 for each individual discriminated against before March 27, 2008, and not less than $4,300 and not more than $16,000 for each individual discriminated against on or after March 27, 2008;
(xi) To participate in, and comply with the terms of, one of the pilot programs set forth in Pub. L. 104-208, Div. C, sections 401-05, 110 Stat. 3009, 3009-655 to 3009-665 (1996) (codified at 8 U.S.C. 1324a (note)), with respect to the respondent's hiring or recruitment or referral of individuals in a state (as defined in section 101(a)(36) of the INA) covered by such a program; and
(xii) In the case of an unfair immigration-related employment practice where a person or entity, for the purpose or with the intent of discriminating against an individual in violation of section 274B(a), requests more or different documents than are required under section 274A(b) or refuses to honor documents that on their face reasonably appear to be genuine, to pay a civil penalty of not less than $100 and not more than $1,000 for each individual discriminated against before March 15, 1999, and not less than $110 and not more than $1,100 for each individual discriminated against on or after March 15, 1999, or to order any of the remedies listed as paragraphs (d)(1)(i) through (d)(1)(vii) of this section.
(2) Civil penalties assessed after August 1, 2016. For civil penalties assessed after August 1, 2016, whose associated violations described in paragraph (d) of this section occurred after November 2, 2015, the applicable civil penalty amounts are set forth in 28 CFR 85.5.
(3) 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. In no event shall back pay accrue from before November 6, 1986. Interim earnings or amounts earnable with reasonable diligence by the individual or individuals discriminated against shall operate to reduce the back pay otherwise allowable. 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 unless it is determined that an unfair immigration-related employment practice exists under section 274B(a)(5) of the INA.
(4) In applying paragraph (d) of this section 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.
(5) If, upon the preponderance of the evidence, the Administrative Law Judge determines that a person or entity named in the complaint has not engaged in and is not engaging in an unfair immigration-related employment practice, then the final order shall dismiss the complaint.
(6) Attorney's fees. The Administrative Law Judge in his or her 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. Any application for attorney's fees shall be accompanied by an itemized statement from the attorney or representative stating the actual time expended and the rate at which fees and other expenses were computed.
(e) Contents of final order with respect to document fraud cases. (1) If, upon the preponderance of the evidence, the Administrative Law Judge determines that a person or entity has violated section 274C of the INA, the final order shall include a requirement that the respondent cease and desist from such violations and pay a civil money penalty in an amount of:
(i) Not less than $275 and not more than $2,200 for each document that is the subject of a violation under section 274C(a)(1) through (4) of the INA before March 27, 2008, and not less than $375 and not more than $3,200 for each document that is the subject of a violation under section 274C(a)(1) through (4) of the INA on or after March 27, 2008;
(ii) Not less than $250 and not more than $2,000 for each document that is the subject of a violation under section 274C(a)(5) or (6) of the INA before March 27, 2008, and not less than $275 and not more than $2,200 for each document that is the subject of a violation under section 274C(a)(5) or (6) of the INA on or after March 27, 2008;
(iii) In the case of a respondent previously subject to one or more final orders under section 274C(d)(3) of the INA, not less than $2,200 and not more than $5,500 for each document that is the subject of a violation under section 274C(a)(1) through (4) of the INA before March 27, 2008, and not less than $3,200 and not more than $6,500 for each document that is the subject of a violation under section 274C(a)(1) through (4) of the INA on or after March 27, 2008; or
(iv) In the case of a respondent previously subject to one or more final orders under section 274C(d)(3) of the INA, not less than $2,000 and not more than $5,000 for each document that is the subject of a violation under section 274C(a)(5) or (6) of the INA before March 27, 2008, and not less than $2,200 and not more than $5,500 for each document that is the subject of a violation under section 274C(a)(5) or (6) of the INA on or after March 27, 2008.
(2) 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 under the control of, or common control with, another subdivision, each such subdivision shall be considered a separate person or entity.
(3) Civil penalties assessed after August 1, 2016. For civil penalties assessed after August 1, 2016, whose associated violations described in paragraph (e) of this section occurred after November 2, 2015, the applicable civil penalty amounts are set forth in 28 CFR 85.5.
(4) Attorney's fees. A prevailing respondent may receive, pursuant to 5 U.S.C. 504, an award of attorney's fees in document fraud cases. Any application for attorney's fees shall be accompanied by an itemized statement from the attorney or representative, stating the actual time expended and the rate at which fees and other expenses were computed. An award of attorney's fees shall not be made if the Administrative Law Judge determines that the complainant's position was substantially justified or special circumstances make the award unjust.
(f) Corrections to orders. An Administrative Law Judge may, in the interest of justice, correct any clerical mistakes or typographical errors contained in a final order entered in a case arising under section 274A or 274C of the INA at any time within thirty (30) days after the entry of the final order. Changes other than clerical mistakes or typographical errors will be considered in cases arising under sections 274A and 274C of the INA by filing a request for review to the Chief Administrative Hearing Officer by a party under § 68.54, or the Chief Administrative Hearing Officer may exercise discretionary review to make such changes pursuant to § 68.54. In cases arising under section 274B of the INA, an Administrative Law Judge may correct any substantive, clerical, or typographical errors or mistakes in a final order at any time within sixty (60) days after the entry of the final order.
(g) Final agency order. In a case arising under section 274A, 274B, or 274C of the INA, the Administrative Law Judge's order becomes the final agency order sixty (60) days after the date of entry of the Administrative Law Judge's order, unless:
(1) In a case arising under section 274A or 274C of the INA, the Chief Administrative Hearing Officer modifies, vacates, or remands the Administrative Law Judge's final order pursuant to § 68.54; or
(2) In a case arising under section 274A, 274B, or 274C of the INA, the order is referred to the Attorney General pursuant to § 68.55.
