DOJ Sues Facebook Over Alleged Discrimination

The 'Protecting U.S. Workers Initiative' goes after its biggest target

By Andrew R. Arthur on December 7, 2020


The Immigrant and Employee Rights Section (IER) in DOJ's Civil Rights Division filed a complaint last week against Facebook with the Office of the Chief Administrative Hearing Officer (OCAHO), in the department's Executive Office for Immigration Review. IER alleges the tech behemoth favored H-1B and other temporary nonimmigrant workers over U.S. workers. That case is part of the "Protecting U.S. Workers Initiative", and Facebook is far and away the biggest target of that initiative.

If the initiative sounds familiar, the Center has highlighted its efforts in the past, in particular in a Backgrounder I wrote in April, as well as in a panel discussion that I participated in with Mark Krikorian in connection with the roll-out of that piece, but it is worth reviewing briefly again.

The initiative had its genesis in Executive Order 13788, "Buy American and Hire American", in which President Trump directed the secretary of State, the attorney general, the secretary of Labor, and the secretary of Homeland Security to protect the interests of U.S. workers in the administration of our nation's immigration system, including by preventing fraud or abuse.

IER launched the initiative in 2017 to crack down on employers who are abusing temporary visa programs to deny U.S. workers job opportunities.

In this context, "U.S. workers" are not just citizens and nationals of the United States, but also lawful permanent residents, aliens who have temporary resident status under the 1986 amnesty, refugees, and asylees, each of whom is protected against discrimination in employment under sections 274B(a)(1) and (3) of the Immigration and Nationality Act (INA).

IER does not pull any punches in its complaint.

It alleges that generally, when Facebook is looking for new employees, the tech giant "uses a rigorous and competitive hiring process", including advertising jobs on its careers website and taking online applications.

In response to its usual job searches, Facebook receives "hundreds of applications for" each of the positions it advertises (more specifically, an average of 104), and IER makes clear that with respect to those potential employees: "Facebook does not pre-determine the ultimate candidate to be hired based on their citizenship or immigration status."

According to IER, however, Facebook uses a very different process when "certain" employees — specifically "temporary visa holders" working for the company – request "permanent positions through the permanent labor certification process", or "PERM".

By way of background, the only temporary visa program referenced in the complaint is the H-1B nonimmigrant visa, provided for in section 101(a)(15)(H)(i)(B) of the INA. The H-1B program is available to employers who are seeking to hire nonimmigrant aliens to work in what are termed "specialty occupations". As the Department of Labor (DOL) explains it, "A specialty occupation is one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor's degree or its equivalent."

The purpose of the H-1B visa program "is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States."

To protect U.S. workers who are similarly employed in the field, the prospective employer of an H-1B nonimmigrant must attest to DOL on a Labor Condition Application (LCA) that it will pay wages to the H-1B that are the greater of the wage the employer pays to its other workers with similar experience and qualifications or the prevailing wage for the occupation in question in the area where the employment is to occur.

Once DOL approves the LCA, it is USCIS's job to approve or deny the H-1B visa classification. H-1B visas are good for three years, and can be renewed for a second three-year period (not to exceed six years total), under section 214(g)(4) of the INA (with a relevant exception explained below).

Facebook has kept USCIS plenty busy in recent years. According to the complaint, in FY 2018 and FY 2019, that agency approved at least 6,134 petitions filed by the company to hire H-1Bs, "in addition to Facebook's employment of many other temporary visa holders."

PERM allows employers in the United States to offer permanent jobs to temporary workers, including H-1Bs. Usually, before the employer can submit an Immigrant Petition for Alien Worker (Form I-140) with USCIS, the employer must secure a labor certification from DOL, which it does by filing an Application for Permanent Employment Certification (ETA Form 9089).

Under section 212(a)(5)(A)(i) of the INA, aliens seeking to come to the United States to perform skilled or unskilled labor are inadmissible unless DOL certifies that:

(I) there are not sufficient workers who are able, willing, qualified ... and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

To determine whether there are U.S. workers who are qualified and available for the position, DOL regulations require the employer to attempt to recruit U.S. workers in three ways 30 to 180 days before filing the ETA Form 9089: (1) by placing a job order on a job board at the State Workforce Agency (SWA) serving the area of intended employment; (2) advertising the job twice in a general circulation newspaper or professional journal; and (3) at least three of 10 other specified "recruitment steps", including at a job fair, through the employer's website or another job search website, through an ad in a "local" or "ethnic" newspaper, and through ads in trade journals.

Under section 106 of the American Competitiveness Act, that six-year limit on H-1Bs' presence in the United States is extended when the employer completes the PERM process, and files an I-140 on the temporary worker's behalf.

According to the complaint, when its temporary visa holder workers request permanent positions through PERM, "Facebook creates a permanent position that is open only to that temporary visa holder", and "then implements a recruitment process intentionally designed to deter U.S. workers from applying." (Note that the period covered in the complaint involved actions "[f]rom at least January 1, 2018 to at least September 18, 2019", although that portion of the complaint is written in the present tense). How did Facebook "deter" applications from U.S. workers?

Well, IER alleges that for positions it reserved for those temporary visa holders, no advertisement appeared on Facebook's careers website, no online applications were accepted, and candidates had to mail (not email — real (paper) mail) the company their applications. If true, that is an odd process for such a tech-savvy company.

Somewhat dryly, the complaint contends: "Not surprisingly, Facebook often gets zero applications for these advertised positions." How often? The DOJ press release states: "Facebook received zero or one U.S. worker applicants for 99.7 percent of its PERM positions". The company allegedly received between two and four applicants for the remaining .3 percent of PERM positions, but had no U.S. worker applicants for them 81.5 percent of the time.

But, in what is the crux of the case, IER alleges that "even when U.S. workers do apply, Facebook will not consider them for the advertised positions", but rather the company "fills these positions exclusively with temporary visa holders." To put a pin in it, the government concludes: "Simply put, Facebook reserves these positions for temporary visa holders."

Here is how IER charges Facebook pulled that off: From at least January 1, 2018, until at least September 18, 2019, its "standard operating procedure" (SOP) when one of its temporary visa holder workers in a "level 3 role" (requiring at least a college degree) and above asked for a permanent position was to "automatically initiate a PERM process".

Oddly, the complaint alleges that Facebook's SOP "was to not consider the temporary visa holder's job performance or seniority or consult with the employee's manager about the temporary visa holder's job performance before initiating the PERM process on his or her behalf."

Unlike its usual online recruitment process, PERM-related jobs were not advertised on its external website, and online applications were not accepted — again, paper mail only. Instead, during that period, a hard copy notice of such positions was posted at the work location, PERM-related jobs were advertised on a SWA Job Board, and those jobs were advertised in a general-circulation newspaper — often the San Francisco Chronicle.

IER alleges that Facebook would also (to comply with the aforementioned DOL rules) advertise in professional journals, through a third-party job-search website, and in a local paper.

Here is an interesting twist: Usually, when employers purchase job ads to appear in the print edition of the Chronicle, the paper also publishes them free of charge on its website portal. During the period in question though, the PERM-related ads that appeared in print in the paper did not show up on its online portal, according to the complaint.

In any event, IER alleges that if during that period, a qualified U.S. worker applied for one of the PERM-related positions, the company's SOP was to find the worker a non-PERM-related vacancy, "reserving the PERM-related vacancy for the PERM beneficiary". If during that period no such vacancy could be located, the SOP "was to decline to hire the U.S. worker for the PERM-related position and to temporarily abandon or suspend the PERM process." Those are serious allegations — if they can be proven.

In the period in question, the complaint alleges, Facebook "filed at least 2,651 PERM applications as part of a process to convert PERM beneficiary" temporary visa holder employees to lawful permanent residents to fill permanent positions, and "at least 2,606 of the PERM applications that Facebook filed were ultimately certified by" DOL. These were not simply low-paying jobs: "The average salary for the positions in these PERM applications was $156,865.50."

That is not to say that temporary visa holder employees are not also limited in their job prospects, at least according to DOJ:

An employer that engages in the practices alleged in the lawsuit against Facebook can expect more temporary visa holders to apply for positions and increased retention post-hire. Such temporary visa holders often have limited job mobility and thus are likely to remain with their company until they can adjust status, which for some can be decades.

Facebook cannot say that it did not see this coming. The complaint alleges that IER told the company that it had initiated an investigation into whether Facebook was violating section 274B of the INA in December 2018, and informed it in October that IER had "found reasonable cause to believe that Facebook had engaged in a pattern or practice of unfair immigration-related employment practices violating" section 274B(a)(1) of the INA.

IER is seeking an order from OCAHO that Facebook cease and desist from the alleged illegal practices it described in the complaint; to take affirmative steps to address those practices; to pay a civil penalty for each individual it purportedly discriminated against; and "to pay back pay, including interest, to each protected individual discriminated against who is found to have suffered uncompensated lost wages due to denied or delayed employment as a result of the discriminatory practices alleged" therein.

Thus far under the initiative, IER has reached numerous settlements, and employers have distributed or agreed to pay more than $1.2 million in back pay to affected U.S. workers and civil penalties to the United States. Most of those were small to medium-sized employers — landscapers, housekeeping services companies, even "an international association of investment professionals" and an intercity bus company. None of them were anywhere near as large as Facebook — but then few companies are.

Given the scope of the violations alleged in the complaint — if they are proven — Facebook could be looking at fines and back pay many (many) times the $1.2 million IER has disgorged thus far.

Again, if you are a worker and believe that you have been discriminated against in a manner alleged in the complaint (or any other violation of section 274B of the INA), call IER's worker hotline at 1-800-255-7688. If you are an employer and know such cheating is occurring elsewhere, call IER's employer hotline at 1-800-255-8155.