The U.S. Department of Justice (DOJ), through the Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), recently settled a claim alleging that the company in question violated the anti-discrimination provision of the Immigration and Nationality Act (INA) when it preferred temporary visa holders over U.S. workers during its recruitment process by placing online job postings that contained citizenship status preferences for F-1 and H-1B temporary visa holders. F-1 visas are issued to foreign students studying in the United States, and H-1B visas are issued to foreign national workers who will be employed in “professional” or “specialty occupations.”
The anti-discrimination provision of the INA prohibits employers from discriminating on the basis of citizenship status when hiring or recruiting for a fee unless required by law, regulation, executive order, or government contract. As such, employers may not express or imply a preference for temporary visa holders over U.S. workers (U.S. citizens and lawful permanent residents) for any employment opportunity in the United States.
Under the terms of the settlement agreement, the company agreed to pay almost $45,000 in civil penalties to the United States. The company is also required to revise its hiring and recruiting procedures and train its HR personnel to ensure compliance with the INA, and to be subject to reporting requirements for a period of two years.
OSC vigorously investigates and prosecutes claims of discrimination and employers found to be engaging in discriminatory activity may be required to pay civil penalties or back pay to injured parties. In a press release announcing the settlement, Jocelyn Samuels, Acting Assistant Attorney General for the Civil Rights Division, stated: “(e)mployers must give all eligible candidates the equal opportunity to compete for employment,” noting further that the DOJ is “committed to ensuring employers do not unlawfully discriminate against U.S. citizens and other work-authorized individuals based on their citizenship status.” When reviewing or assessing compliance programs, it is critical that companies examine their hiring policies and practices to avoid discrimination and proactively discuss compliance with experienced legal counsel.