In April, I wrote about the "Protecting U.S. Workers Initiative", launched in 2017 by the Immigrant and Employee Rights Section (IER) in DOJ's Civil Rights Division to crack down on employers who are abusing temporary visa programs to deny U.S. workers job opportunities. On Monday, DOJ announced that it had reached its ninth settlement under the initiative, this time in response to a claim that an IT staffing and consulting services company was discriminating against U.S. workers in a job advertisement "aimed exclusively at non-U.S. citizens with certain temporary visas, including H-1B visas and F-1 student visas."
As I noted in the April piece, the Immigration and Nationality Act (INA) prohibits discrimination against any individual, other than an "unauthorized alien" (that is, an alien without employment authorization), in "hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment" because of that individual's national origin or "in the case of a protected individual", citizenship status.
A "protected individual" is a U.S. citizen or national, lawful permanent resident, aliens who have temporary resident status under the 1986 amnesty provision, refugees, and asylees. Collectively, these individuals are known as "U.S. workers".
The settlement agreement in that case states that ASTA CRS Inc. (Asta) "posted a job advertisement on Indeed.com" – ostensibly in August 2019 – "seeking specific non-U.S. citizen applicants, including students who hold F-1 nonimmigrant visas, for entry-level positions".
Asta's website identifies the company as an IT "provider delivering superior quality consulting and staffing solutions to our client partners". It sounds like a great place to work (at least according to its website):
Imagine a place where your unique talents are celebrated, you feel mutual respect from your co-workers and you can learn and develop new skills in a friendly, supportive environment. There is a reason why over the last 4 years Asta has had a very high employee retention rate. The answer is simple. Asta values its people.
. . .
Employees are empowered with all the tools, direction and opportunities they need to design, and build their dream careers.
In an encouraging sign that U.S. workers are beginning to realize that they have recourse against discrimination, the settlement agreement explains that two U.S. citizens contacted IER with complaints about the job posting in question. After undertaking an investigation into those complaints, IER determined that "by soliciting applications only from applicants with certain non-U.S. citizen immigration statuses and referencing the need for specific work permits that can only be obtained by non-U.S. citizens on certain temporary visas," Asta's "advertisement unlawfully excluded" U.S. workers.
Asta denied that it had violated the INA, or that its actions were unlawful, but settled the matter nonetheless.
It would have been helpful if DOJ had included the job advertisement in question (a search of Indeed.com did not show any listings for ASTA in Maryland, the company's office that posted the advertisement in question) to examine the veracity of the competing claims.
That said, Asta is subject to semi-annual reporting requirements for the next two years under which it must provide IER with its Maryland job advertisements, as well as "the name, immigration status, visa status (if applicable), sponsorship needs (if applicable), and most recent contact information (phone number, home address, and email address) of each individual" the company "referred to clients for consideration and/or hired" in the Free State.
DOJ's press release quotes Eric Dreiband, DOJ's Assistant Attorney General for the Civil Rights Division, who states:
Our message to workers is clear: if companies advertise a preference for temporary visa holders over U.S. workers, the Department of Justice will hold them accountable. This is especially important at a time when more U.S. workers may be seeking employment as a result of the economic impact of COVID-19.
This is especially true in this instance. Maryland had an unemployment rate of eight percent in June, which may not sound high by national standards, but the state has many built-in buffers against huge unemployment swings – not least of which is the fact that it surrounds the federal seat of government on three of its four sides. Even with that huge advantage, the state's current unemployment rate is more than twice as high as it was as late as March (3.3 percent).
And, IT is big business in the state. Maryland had the fifth highest concentration of tech workers in the nation as of March 2019, and "Professional, Scientific, and Technical Services" accounted for 254,800 jobs in the state as of June – more than 10 percent of total employment.
Finally, AAG Dreiband's message is plainly getting out: the following Tweet from DOJ about the settlement has received hundreds of likes and retweets:
Justice Department Settles Claim Against Virginia-Based Staffing Company for Improperly Favoring Temporary Visa Workers Over U.S. Workers https://t.co/OfjXwYnh4j
— Justice Department (@TheJusticeDept) July 27, 2020
With the national unemployment rate at 11.1 percent in June, all U.S. employers should be encouraged to "Hire American"—in this instance, not just citizens and nationals but aliens protected under the INA, as well. IER is doing its part to ensure they do so, and aggrieved U.S. workers should do their part, as well. If they believe they have suffered discrimination, those workers can learn how to file a charge here. The IER charge form is easy to complete.
The job you save may be your own.