DOJ, DOL Reach Settlements With Facebook Resolving Claims of Discrimination Against U.S. Workers

The Departments of Justice (DOJ) and Labor (DOL) released a joint statement on October 19, 2021, announcing separate settlement agreements with Facebook regarding its use of the permanent labor certification program (PERM).

The DOJ settlement includes about $14 million in fines, along with additional notice, recruitment, and training requirements. The DOJ settlement resolves its claims that Facebook routinely refused to recruit, consider, or hire U.S. workers—a group that includes U.S. citizens, U.S. nationals, asylees, refugees, and lawful permanent residents—for positions it had reserved for temporary visa holders in connection with the PERM process.

Additionally, the DOL settlement resolves issues it separately identified through audit examinations of Facebook’s recruitment activities related to its PERM applications filed with the Employment and Training Administration’s Office of Foreign Labor Certification (OFLC).

Details:

· Joint DOJ-DOL Statement, Oct. 19, 2021, https://www.justice.gov/opa/pr/justice-labor-departments-reach-settlements-facebook-resolving-claims-discrimination-against

· DOJ-Facebook Settlement Agreement, https://www.justice.gov/opa/press-release/file/1443336/download

President Biden Replaces Country-by-Country Pandemic-Related Air Travel Restrictions With Vaccine Requirement

Effective November 8, 2021, a new Presidential Proclamation that governs the entry into the United States by air of “noncitizen nonimmigrants” revokes previous country-by-country restrictions applied during the COVID-19 pandemic and replaces them with a vaccination requirement.

The new policy suspends the entry of unvaccinated noncitizen nonimmigrants, except in limited circumstances, and “ensures that the entry of unvaccinated noncitizen nonimmigrants is consistent” with applicable health and safety determinations. These include, when appropriate, requiring that such individuals arrange to become fully vaccinated against COVID-19 upon arrival. Exceptions to the new policy include certain noncitizens with medical, humanitarian, or emergency issues, among other reasons.

Details:

· Presidential Proclamation, Oct. 25, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/10/25/a-proclamation-on-advancing-the-safe-resumption-of-global-travel-during-the-covid-19-pandemic/

Settlement Agreement Outlines ‘New, Overarching’ Guidance for H-1B Petitions for Market Research Analysts

U.S. Citizenship and Immigration Services (USCIS) reached a settlement agreement in the case of MadKudu Inc. v. USCIS that the agency said “outlines new, overarching guidance” for adjudicating pending or future H-1B petitions for market research analysts.

USCIS had denied plaintiffs’ H-1B petitions for market research analyst positions based on the agency’s determination that the Department of Labor’s Occupational Outlook Handbook entry for market research analysts did not establish that this occupation was a “specialty occupation.” The settlement agreement includes detailed instructions on how USCIS is to evaluate submitted evidence for and adjudicate such petitions, including how educational requirements and documentation can be met.

The agreement allows class members, as defined in the USCIS news alert and the settlement agreement, to submit a Form I-290B, Notice of Appeal or Motion, to request that certain denied Forms I-129, Petition for a Nonimmigrant Worker, seeking H-1B classification for a market research analyst be reopened and adjudicated per the terms of the settlement agreement. No fee will be charged for such requests. Class members have until April 26, 2022, to submit their Forms I-290B.

USCIS said it will make a decision on all eligible, timely filed reopening requests within 90 days of receipt of the physical file at the adjudicating office. USCIS will “attempt to prioritize” reopening requests for petitions with labor condition applications (LCAs) expiring fewer than 90 days after the Form I-290B is properly filed with USCIS.

Details:

· USCIS news alert, Oct. 28, 2021, https://www.uscis.gov/newsroom/alerts/directions-for-class-members-filing-motions-to-reopen-pursuant-to-settlement-agreement-in-h-1b

· Settlement agreement, MadKudu Inc. v. USCIS, https://www.uscis.gov/sites/default/files/document/legal-docs/Madkudu-settlement-agreement.pdf

· Statement from the American Immigration Lawyers Association, Oct. 28, 2021, https://www.aila.org/advo-media/press-releases/2021/aila-press-statement-denial-of-h1b-petitions