DOJ's Immigration-Employment Program Faces Headwinds Amidst Milestone Settlement

Background 

DOJ can pursue claims alleging that an employer has discriminated against U.S. citizens and other protected workers under 8 U.S.C. § 1324b through investigations and by filing class action-style lawsuits. Both DOJ and private individuals may file suit, and all 1324b litigation occurs before an administrative law judge ("ALJ") in the Office of the Chief Administrative Hearing Officer ("OCAHO") with review in the U.S. courts of appeals.

Developments

First, on November 8, 2023, a federal court ruled that the OCAHO scheme violates the Constitution's Appointments Clause because under Congress's 1324b scheme, ALJ decisions are not reviewed by a "principal officer," such as the attorney general. See SpaceX v. Bell, et al., No. 1:23-cv-00137 (S.D. Tex.). Recently, DOJ had implemented a new rule interpreting Section 1324b to allow the attorney general to review ALJ final orders. But the court decided DOJ's new rule "conflicts with the plain language of §