DOJ Cautions H1B Employers Against Discriminating Against U.S. Workers

On April 3, 2017, the Department of Justice (DOJ) issued a news release titled “Justice Department Cautions Employers Seeking H-1B Visas Not to Discriminate Against U.S. Workers” [link].

As the title of the news release suggests, the DOJ “cautioned employers petitioning for H-1B visas not to discriminate against U.S. workers.” This warning came as the United States Citizenship and Immigration Services (USCIS) began accepting cap-subject H1B petitions for fiscal year 2018.

H1B petition

The DOJ notes that the Immigration and Nationality Act (INA) contains provisions generally prohibiting employers from discriminating against U.S. workers because of their citizenship or national origin in hiring, firing, or recruiting. Accordingly, the DOJ noted that a preference for H1B visa holders over U.S. workers may violate these provisions of the INA.

The notice explains that the DOJ's Immigrant and Employee Rights Section (IER) is responsible for enforcing the anti-discrimination provision of the INA. It is worth noting that the statute also prohibits unfair documentary practices and retaliation and intimidation. The DOJ provided the following IER phone numbers to learn about protections against employment discrimination under the INA:

  • Worker Hotline: 1-800-255-7688 (1-800-237-2515, TTY for hearing impaired); and
  • Employer Hotline: 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired).

The DOJ explains that applicants or employees who believe they were subjected to discrimination based on citizenship, immigration status, or national origin in hiring, firing, or recruitment for referral may contact the IER's worker hotline for assistance.

Statement Issued with News Release

The news release includes the following statement from Acting Assistant Attorney General Tom Wheeler of the DOJ Civil Rights Divisions:

“The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers. U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.”

Conclusion

The DOJ news release was issued on the same day as the USCIS announced new initiatives for detecting H1B fraud or abuse committed by employers. Both announcements signal that the Trump Administration will focus heavily on combating fraud or abuse in the H1B program.

It is important to note that the DOJ does not adjudicate H1B petitions. Rather, this news release points to its focus on detecting and, if necessary, prosecuting certain types of discrimination committed by employers seeking to employ H1B workers.

The news release does not change any existing laws or policies. H1B employers have the same obligation to follow all of the relevant laws and regulations that they had before the release. However, the news release emphasizes that even well-intentioned H1B employers must learn all rules regarding H1B petitioning and employment and clearly operate in good faith and in full compliance with those rules.

If an H1B petitioner/employer has questions with regard to the applicable laws or regulations, it should consult with an experienced immigration attorney in the field of employment immigration. In addition to helping a petitioner file an approvable H1B petition, an attorney may help the employer ensure that it is following all of the relevant laws and regulations.

Please see our full article on the USCIS announcement to learn about how the USCIS plans to enhance its capability to detect H1B fraud and abuse [see article].