As previously discussed here and here, this administration appears to be doing everything it can to enforce President Trump’s “Buy American and Hire American” executive order, by making it more difficult for employers to get work visas. However, even if an employer is successful in obtaining a visa for a foreign worker, they may have yet another hurdle: they could be facing a discrimination lawsuit on the basis of national origin because they have discriminated against applicants who are “American” by hiring a foreign worker.
While most national origin discrimination lawsuits are brought on behalf of employees who are of foreign origin, the Department of Justice (“DOJ”) has previously sued employers for discriminating against Americans. Such lawsuits are about to become more common.
In a July 31, 2018 joint memorandum, DOJ and the Labor Department have agreed to share information, refer matters to each other, and train each other’s employees about “employers that prefer to hire temporary visa workers over qualified U.S. workers.” This memorandum follows a similar agreement in May between Immigration Services and DOJ to investigate employer fraud and abuse in hiring immigrants on foreign work visas.
Although the enforcement effort to date has been rather paltry — resulting in only one lawsuit and three settlements totaling $285,000 in collections — the administration is signaling through this memorandum a greater commitment to this initiative. With the Government’s support of national origin discrimination cases brought on behalf of “Americans,” employers should expect plaintiff’s lawyers to consider bringing these types of cases.
The fact that a visa was approved will not necessarily insulate an employer from a national origin discrimination case, especially if there is evidence that a more qualified American was bypassed in the process. Moreover, a discrimination lawsuit could also cause the Department of Justice to scrutinize the original visa application for fraud and abuse. These additional risks and their potential costs will need to be considered by employers when deciding whether to engage in the visa process in the first place.