Three Recent Settlements Show the Importance of Compliance with the Immigration and Nationality Act

What Employers Need to Know About an H-1B Visa

Recently, three separate lawsuits regarding discrimination have been settled by the U.S. Department of Justice (D.O.J.) as well as the Department of Labor (D.O.L.). These cases involve distinct allegations; however, each serves as a lesson on how U.S. companies need to practice caution in implementing hiring practices to avoid serious consequences.


In the first of these cases settled in late October, both the D.O.J. and D.O.L. resolved lawsuits with the largest social media company on the planet, resolving allegations of unfair hiring and recruitment practices relating to its PERM labor certification practices. According to the department’s allegations, the company routinely discriminated against American workers by refusing to recruit or consider U.S. workers for positions the company had set aside for foreign workers.


This violates the rules of the PERM labor certification program, which requires employers to first attempt to recruit American workers for positions to ensure that there are no domestic workers available before attempting to recruit foreign workers. According to the lawsuits, the social media employer had regularly applied tactics intended to deter domestic workers from applying, such as only accepting applications through the mail and even then refusing to consider them in favor of workers with temporary visas.


These practices would violate the rules of the Immigration and Nationality Act, which prohibits discrimination in hiring based upon the immigration or citizenship status of workers. This case was settled with civil penalties of $4.75 million and $9.5 million in restitution to victims. These significant penalties illustrate the government’s strong intent to enforce I.N.A.’s anti-discrimination provisions. However, the government’s crackdown on violations did not stop here.


Days after the former settlement, the D.O.J. announced another settlement with a Baltimore-based construction company. In this case, the D.O.J. alleged that the company had refused to consider domestic workers for temporary positions instead of showing preference to workers with H-2B visas, including imposing more restrictive requirements for U.S. workers on the job advertisement postings for these positions. This settlement imposed civil penalties of $40,600 on the company as well as a requirement for increased domestic recruitment in the future.


In the final case, which occurred only a few days later, the D.O.J. reached a settlement with a California-based supply chain services provider, which failed to permit a non-citizen worker to provide documentation of their choice to prove work authorization for the Form I-9.


This violates the I.N.A., which requires employers to accept any valid documentation which the worker chooses. As a result of this settlement, the company will pay undisclosed civil penalties and be required to conduct training for all of its employees involved in the work authorization verification process.


All of these cases highlight the interest of the current administration in enforcing the I.N.A.’s anti-discrimination provisions. One of the best ways to remain compliant is to use an electronic I-9 management tool. This can guide employers through the work authorization verification process and ensure that the Form I-9 is properly completed and stored for review whenever it is needed so employers will remain compliant.