New Focus on Immigration Based Bias Against U.S. Workers

    Employers who hire foreign workers are now likely to undergo additional scrutiny.  The United States Department of Justice Immigrant and Employee Rights Section (“DOJ/IER”) and the State Department’s Bureau of Consular Affairs (“DOS/CA”) have teamed up in a new effort to combat visa fraud and discrimination against U.S. workers.[1]  The aim of the partnership is to protect U.S. workers from discrimination by an employer preferring to hire foreign workers.[2]  The agencies will share information about employers that may be engaging in unlawful discrimination, such as by making misrepresentations in their use of employment-based visas.[3]

    Ironically, the DOJ/IER has generally focused on discrimination against immigrant workers.  However, this year, it launched a “Protecting U.S. Workers” initiative to focus on identifying employers that prefer foreign visa workers over U.S. workers.  It is thought that the Trump administration decided to use the DOJ/IER to advance the “hire American” policy established in an executive order.

    The first complaint under the “Protecting U.S. Workers” initiative was filed in September of this year and accuses a Colorado agricultural supplier of favoring foreign workers working under H-2 A agricultural visas over three U.S. agricultural worker applicants.  None of the three U.S. applicants were ultimately hired by the agricultural supplier; instead, all positions were filled by foreign workers.  The complaint alleges that the agricultural supplier (1) imposed unnecessary job requirements; and (2) subjected the U.S. agricultural worker applicants to different, and more difficult, hiring processes than it required for H-2 A workers.  Specifically, one of the U.S. applicants did not speak English, and was therefore not interviewed for a position even though English proficiency was not a job requirement.  In addition, the remaining two U.S. applicants were not allowed to complete the hiring process, including a pre-employment drug screening on or after their first day on the job, and were ultimately never hired.  Whereas, the hired foreign workers were allowed to complete the hiring process on or after their first day on the job, and some of these workers were not even required to complete a pre-employment drug screening.

Practical Takeaways

    With the new government focus on unlawful discrimination against U.S. workers, employers hiring foreign workers should revisit their hiring process to ensure consistent treatment of applicants, regardless of their citizenship status.  Employers with questions about the hiring of foreign workers are encouraged to speak with their employment attorney.

[1] See https://www.justice.gov/opa/pr/departments-justice-and-state-partner-protect-us-workers-discrimination-and-combat-fraud

[2] The partnership between the DOJ/IER and the DOS/CA was established under a memorandum of understanding between the two agencies.  The DOS/CA is responsible for the Department of State’s visa operations worldwide, including the issuance of visas.  The DOJ/IER is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act (“INA”).  The INA’s anti-discrimination provision protects U.S. workers from discrimination on the basis of citizenship status.  8 U.S.C. § 1324(b). 

[3] U.S. businesses can sponsor foreign workers for visas which allow them to temporarily work in the U.S, for example: (1) the H-1B specialty occupation visa; (2) the H-2A agricultural visa; and (3) the H-2B nonagricultural seasonal worker visa.

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