Daily Labor Report®

Facebook Suit by U.S. Augurs Green Card Sponsor Chill (Correct)

Dec. 4, 2020, 7:15 PM; Updated: Dec. 4, 2020, 9:34 PM

The U.S. Justice Department lawsuit accusing Facebook Inc. of favoring temporary visa holders for employment over their U.S. counterparts, which builds on Trump administration efforts to prioritize the filling of American jobs with American workers, will likely have a chilling effect on other employers sponsoring workers for green cards.

Facebook allegedly “refused to recruit, consider, or hire qualified and available U.S. workers for over 2,600 positions,” which it held for specialty occupation visa-holders to sponsor for permanent work, according to a statement from the civil rights division of the Justice Department. The DOJ’s complaint was filed with the Executive Office of Immigration Review, where it will be overseen by an administrative law judge.

“This lawsuit follows a nearly two-year investigation into Facebook’s practices and a ‘reasonable cause’ determination by the Justice Department’s Civil Rights Division,” said Assistant Attorney General Eric Dreiband in a Thursday statement.

“Our message to workers is clear: if companies deny employment opportunities by illegally preferring temporary visa holders, the Department of Justice will hold them accountable. Our message to all employers—including those in the technology sector—is clear: you cannot illegally prefer to recruit, consider, or hire temporary visa holders over U.S. workers,” he said.

The White House goal of placing Americans workers ahead of foreign nationals for U.S. jobs dates back to President Donald Trump’s 2017 executive order to “Buy American and Hire American.” Since then, numerous federal agencies have launched initiatives to mitigate the hiring of foreign workers and root out potential preferences for foreign nationals in instances where American workers could have been hired.

Trump doubled down on his goal in August by mandating that executive departments and federal agencies review government contracts to determine whether hiring opportunities for American workers were shorted.

Jobs Unfilled

But the Justice Department’s allegations against Facebook are unique in that they cut against a sanctioned Labor Department process that already requires an employer to certify that there are no American workers available to permanently fill a particular job.

Facebook might argue that the reason it employed temporary visa-holders is because they were unable to find those U.S. citizens, said Esther Lander, a partner with Akin Gump Strauss Hauer & Feld LLP, who represents companies in employment matters.

“Facebook might also point out that DOL—also the federal government—is responsible for making the determination that the position can’t be adequately filled with US Citizens and that is precisely what DOL did in this case, so Facebook was authorized by the government and is not the party to blame here,” Lander, who isn’t representing Facebook in the litigation, said in an email. “It seems the real issue here is that maybe DOL should have applied more scrutiny to the applications before concluding the jobs couldn’t be filled with citizens, but that isn’t evidence of discrimination by Facebook.”

This lawsuit could have a chilling effect on the permanent labor certification process, or PERM, which employers use to sponsor skilled foreign national workers, according to Cyrus Mehta, founder and managing partner of Cyrus D. Mehta & Partners PLLC, a firm that specializes in employment immigration.

If an employer scrupulously follows the Labor Department’s complex rules governing the labor certification process, the employer could still be penalized by another branch of the federal government, based on this complaint, Mehta said. He said he isn’t aware of any specific investigations into similar allegations of employers abusing the labor certification process.

Worker Displacement

Employers only apply for the labor certification if they intend to hire a foreign worker—and they likely already have a specific worker who’s already employed under a temporary visa in mind, said Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Center.

In its complaint, the DOJ acknowledges that the labor certification process “allows employers to offer permanent jobs to temporary visa holders, who may then seek to become lawful permanent residents with permission to live and work in the United States.” That being said, the employer must first certify that there aren’t “qualified and available” U.S. workers when applying for the green card.

“If you already have the person in the job, and you know you want to hire them permanently, the employer has an interest in not finding a U.S. worker,” she said. “Frankly, if it weren’t that way, what employer is going to sponsor a foreign national for a green card that they haven’t already employed?”

This process, however, is rife with abuse, according to John Miano, a fellow with the Center for Immigration Studies, an organization that says it is “low-immigration, pro-immigrant.”

The allegation was that Facebook was “making Americans jump through hoops” during the labor certification process “where they could easily be segregated,” he said in an email. “So finally, an administration is taking action on this.”

Pattern of Pursuit

This isn’t the first instance of the Trump administration taking steps to pursue allegations that American workers were somehow impacted by the hiring practices of U.S.-based employers seeking foreign workers, or to stymie the hiring of additional foreign workers.

The DOJ launched its “Protecting U.S. Workers” initiative in 2017, collecting more than $1.2 million in civil penalties and compensation from employers accused of favoring foreign workers.

In August, the Department of Homeland Security paused tens of thousands of additional visas distributed to non-agricultural seasonal temporary workers, which some businesses said they desperately needed and were approved in previous years.

The DHS also teamed up with the Labor Department to share more information on the H-1B specialty occupation visa program for enforcement purposes, a move that put some employers on high-alert.

Maintaining a robust path to permanent work authorization is essential, said Mehta, the employment immigration attorney.

“You can’t just have them as guest workers and then throw them out after a few years,” he said. “This lawsuit could create a chilling effect on the labor certification program that employers use to sponsor skilled foreign worker nationals.”

(Corrects certification requirements in seventh and 13th paragraphs of story. )

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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