Employers who rely on H-1B visa holders, other temporary workers, or who sponsor green card holders should make sure that their employment practices comply fully with a little-known provision of the Immigration and Nationality Act (INA): Section 1324b. Otherwise, they may find themselves in the crosshairs of the Justice Department, the Labor Department, plaintiffs’ lawyers, or all three.
A recent court decision and the accompanying $14 million settlement between Facebook and the Justice and Labor Departments involving alleged H-1B visa and green card practices exemplifies these risks.
Citizenship-Status Discrimination Under the INA
President Ronald Reagan signed the Immigration Reform and Control Act in 1986. IRCA was a quintessential congressional compromise. It established employer sanctions for hiring unauthorized immigrants, ushering in today’s Form I-9 verification system. It also legalized many immigrants who then were present in the U.S. without authorization.
IRCA also established 8 U.S.C. § 1324b. Section 1324b created a new kind of prohibition under the INA: employers cannot discriminate in hiring, firing, or recruitment against protected workers because of their “citizenship status.” Section 1324b reflects concern for American workers and for work-authorized immigrants in the U.S. It protects U.S. citizens, certain lawful permanent residents, and those granted asylum or refugee status.
Section 1324b also authorizes employers to favor a U.S. citizen over a non-citizen if “the two individuals are equally qualified.” According to one of IRCA’s lead architects in Congress, this exception responded to the concern that Section 1324b’s inclusion of citizenship-status discrimination protection for foreign‑immigrant workers “would have the effect of discriminating against U.S. citizens.”
The DOJ’s Civil Rights Division enforces Section 1324b, including discrimination against U.S. workers in favor of temporary visa holders. DOJ can launch investigations, investigate charges by aggrieved workers, subpoena documents and witnesses, and file individual and class action-style lawsuits against employers.
Section 1324b also authorizes workers to file their own lawsuits, and prevailing plaintiffs can recover their attorneys’ fees, as well as obtain injunctions, civil penalties, and back pay.
All Section 1324b litigation starts in the Office of the Chief Administrative Hearing Officer (OCAHO) and the U.S. courts of appeals review their rulings. OCAHO judges have applied Rule 23 standards to decide whether to certify a private class action.
Hiring temporary visa holders also implicates the Labor Department’s enforcement authority. DOL’s Wage and Hour Division enforces INA protections for temporary workers. Employers who wish to sponsor a foreign worker for permanent work authorization, such as with a green card, must obtain certification from DOL before the employer can submit an immigrant petition to the Department of Homeland Security.
That process includes a certification that there are not sufficient U.S. workers “able, willing, qualified and available to accept the job opportunity” and “that the employment of the foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.” A false certification can carry criminal penalties under federal false statements statutes.
Recent Government Enforcement
DOJ’s late-2021 enforcement actions show that the government is continuing aggressive enforcement of Section 1324b as to temporary visa holders.
For example, in November 2021, DOJ found that a Texas manufacturing company, Igloo Products Corp., set aside positions for workers in the H-2B temporary visa program for nonagricultural jobs.
According to DOJ, the company assumed U.S. workers would not be interested in seasonal production-helper positions and, thus, did not consider their applications. The company will pay civil penalties and make back pay available to U.S. workers discriminated against in favor of H-2B visa holders, change its policies and be subject to monitoring by DOJ.
In October 2021, DOJ and DOL announced a joint settlement of allegations that a social media company, Facebook, (now called Meta Platforms Inc.) used the permanent labor certification program (PERM) to sponsor 2,600 H-1B visa holders for green cards, at the expense of U.S. workers. The settlement requires the company to change its practices and to pay up to $9.5 million to eligible victims of discrimination and another $4.75 million in civil penalties.
The settlement grew out of a June 2021 OCAHO determination that the DOJ’s lawsuit stated a valid INA claim and that “compliance with DOL regulations does not, in and of itself, eliminate the possibility of an employer acting in a discriminatory manner in violation of §1324b.” The settlement also resolved DOL’s audit of the company’s PERM applications.
In August 2021, DOJ resolved claims that between August 2019 and June 2021, an Illinois information technology staffing and recruiting company, Ameritech Global Inc., illegally posted job advertisements that announced its preference to fill positions with non-U.S. citizen workers and then failed to consider U.S. worker applicants, who nevertheless applied to the job vacancies.
DOJ announced it will pursue employers “who discourage and refuse to hire eligible job applicants based on their citizenship or immigration status.”
The federal government’s focus on enforcing protection for U.S. workers illustrates that employers should analyze the requirements of the INA’s anti‑discrimination provision and their regulatory obligations about temporary or permanent worker programs.
Often, copycat litigation by the private plaintiffs’ bar follows government enforcement. In 2020, OCAHO recognized the ability of a U.S. citizen plaintiff in a private lawsuit validly to allege a claim of discrimination against an IT company for its and its staffing firm’s practices in the initial hiring of an H-1B worker.
Similar claims involving advertising or the PERM program concerning U.S. workers, including potential class-action style claims, could be on the horizon.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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Eric S. Dreiband is a partner in Jones Day’s Washington, D.C., office. He served as the general counsel of the EEOC from 2003-2005, assistant attorney general for the Justice Department’s Civil Rights Division from 2018-2021, and deputy administrator of the Labor Department’s Wage and Hour Division from 2002-2003.
Alexander V. Maugeri is of counsel in Jones Day’s New York office. He served as deputy assistant attorney general responsible for immigration, employment, and appellate litigation and chief of staff for the Justice Department’s Civil Rights Division from 2019-2021.
Kate S. O’Scannlain is a partner in Jones Day’s Washington, D.C., office. She served as solicitor of labor, as the highest-ranking woman and third-highest ranking official at the department, from 2018-2021 where she supervised over 500 lawyers and staff nationwide.
The views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect the views or opinions of Jones Day.