Summary
- A Department of Justice administrative law judge has issued an opinion that in a very real sense has erected a wall separating American citizens from American jobs. He ruled that an employer can advertise for a job proclaiming “No U.S. Citizens Need Apply” without giving citizen job-seekers a cause of action under a federal law specifically designed to prevent employers from discriminating against them (and other protected persons). Attorney General Todd Blanche has the power to vacate or rewrite the decision, and I urge him to consider doing so.
- Under federal law, an employer who discriminates in hiring based on job seekers’ national origin or citizenship status (in the case of U.S. citizens, lawful permanent residents, refugees, and asylees) is subject to penalty for engaging in an unfair immigration-related employment practice.
- The ALJ ruled that discriminatory advertising in and of itself “does not represent a discrete cause of action” under the statute. Rather, it can only be used “as evidence supporting a claim of discriminatory hiring”. This consolation prize for discriminated-against workers offers little consolation, because of the often-insurmountable evidentiary burdens they face in demonstrating that discrimination led to their being passed over for particular jobs, despite blatantly discriminatory advertising making employers’ discriminatory intent crystal clear.
- The Justice Department pointed out to the ALJ that it “has reached many settlements with employers … addressing discriminatory language in job advertisements, such as ‘U.S. citizen only’ or ‘only H-1B visa workers’” — to no avail. DOJ urged the ALJ “to rule that a discriminatory advertising claim is cognizable” — to no avail. It warned him that excluding job advertising from statutory coverage would “open[] an easy avenue for employers to commit hiring discrimination with impunity” — to no avail.
- Attorney General Blanche has the power to review the ALJ’s decision and “enter an order that adopts, modifies, vacates, or remands” it. I would urge the attorney general to consider doing so — to combat the most invidious effects of employment discrimination in America against American citizens. But the clock is ticking — he has till mid-October to decide.
The Wall
We all remember from our U.S. history classes stories about supposed “No Irish Need Apply” signs from the 19th Century. Well, on August 12 an administrative law judge (ALJ) issued an opinion that in a very real sense has erected a wall separating American citizens from American jobs. The ALJ in the U.S. Department of Justice’s (DOJ) Executive Office for Immigration Review’s Office of the Chief Administrative Hearing Officer (OCAHO) ruled that an employer’s job advertisement could proclaim “No U.S. Citizens Need Apply” without giving U.S. citizen job-seekers a cause of action under a federal law specifically designed to prevent employers from discriminating against U.S. citizens and other protected individuals. Attorney General Todd Blanche has the power to vacate or rewrite the decision, and I urge him to consider doing so.
The Law
The Immigration Reform and Control Act of 1986 (IRCA) prohibited “unfair immigration-related employment practices”. The provision, now located at § 274B of the Immigration and Nationality Act (INA) (as modified by the Immigration Act of 1990) provides (with certain exceptions) that:
It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized [to work] alien, as defined in section 274A(h)(3)) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment—
(A) because of such individual’s national origin, or
(B) in the case of a protected individual [generally, a U.S. citizen or national, a lawful permanent resident, a refugee or an asylee], because of such individual’s citizenship status.
Congress created this protection out of concern that IRCA’s “employer sanctions” — barring the knowing hiring, recruitment or referral for a fee, or continued employment of an unauthorized alien, and requiring employers to check the employment eligibility of new hires through the “I-9” process — could result in discrimination. IRCA’s conference report1 explained that “[t]he antidiscrimination provisions … are a complement to the sanctions provisions, and must be considered in this context” and that they were “included in order to respond to the fears and concerns expressed by many that sanctions will result in employment discrimination based on national origins or citizenship status”. The report elaborated that “[S]ome Members [were concerned] that people of ‘foreign’ appearance might be made more vulnerable by the imposition of sanctions. While the bill is not discriminatory, there is some concern that some employers may decide not to hire ‘foreign’ appearing individuals to avoid sanctions.”
In any event, the protection against “unfair immigration-related employment practices” applies to all U.S. citizens and other protected individuals, regardless of appearance.
An Independent Cause of Action?
In US Tech Workers v. Boston Consulting Group, Inc.,2 ALJ John Henderson explained that “The parties dispute whether [§ 274B] provides for an independent cause of action for advertising discrimination.”
Judge Henderson stated that “[c]omplainant argues that it does, relying on the [statutory] language” and that “[i]n support of this argument, [OCAHO] caselaw … interprets the statute broadly to include many aspects of the pre-employment process”. (Citing OCAHO decisions including the 2010 decision in Mid-Atlantic Reg'l Org. Coal., Laborer’s Int’l Union of N. Am. v. Heritage Landscape Servs..) However, he noted that “Complainant can cite to no OCAHO caselaw, or for that matter any cases in any [federal] court, which have recognized a cause of action due to a discriminatory advertisement under § [274B] based solely on the ad, separate and apart from whether a person ever attempted to find employment.”
Judge Henderson explained that “Complainant analogizes his case to a Title VII [of the Civil Rights Act of 1964 (addressing equal employment opportunity)] case alleging advertising discrimination.” But he noted that “Title VII has an explicit provision banning advertising discrimination, one which the courts have recognized as creating an independent cause of action.” Henderson was referring to 42 U.S.C. § 2000e-3(b), which provides that:
It shall be an unlawful employment practice for an employer … to print or publish or cause to be printed or published any notice or advertisement relating to employment … indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, except … when religion, sex, or national origin is a bona fide occupational qualification for employment.
Henderson noted further that “Other civil rights statutes which have been read to ban advertising discrimination do so through explicit statutory language or an implementing regulation which accomplishes the same.” He cited 42 U.S.C. § 3604(c), which provides that:
[It shall be unlawful t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
He then quoted the Supreme Court’s conclusion in its 2009 decision in Dean v. United States (itself quoting the Court’s 1983 decision in Russello v. U.S.) that “where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion”.
Judge Henderson mused that it “militates against a reading of § [274B] to include advertising discrimination when the drafters of the statute, who were aware of analogous civil rights statutes which included a ban on advertising discrimination, decided to not include one”.
I should first note in response that IRCA’s bar against unfair immigration-related employment practices was enacted over two decades after the Civil Rights Act of 1964, and it amended the INA, not the Civil Rights Act. Judge Henderson tried to downplay this inconvenient truth by burying in a “but see” that the Seventh Circuit had concluded in its 2018 decision in Arreola-Castillo v. United States that, in the ALJ’s words, the “presumption that Congress acts intentionally when it omits language from a statute is entitled to less weight when a party compares language used in different federal statutes”. Indeed.
Second, after Judge Henderson “directed the parties to provide additional briefing” regarding whether a claim of advertising discrimination is cognizable under § 274B, DOJ’s Civil Rights Division’s Immigration and Employee Rights Section (IER) filed a Statement of Interest of the United States.3 The statement explained that “[a]lthough the United States is not a party to this case”, IER wanted “to assist the Court in resolving” the question of cognizability. IER wrote in the statement that:
Although Title VII explicitly prohibits discrimination in advertising and Section [274B] does not, OCAHO has made clear that relying on Title VII as a guide to interpret § [274B] is appropriate only when the language of the two statutes is similar. [Citing the 1994 decision in Zarazinski v. Anglo Fabrics Co. rejecting a narrow interpretation of § [274B](a)(5) based on a comparison to Title VII and the Age Discrimination in Employment Act (ADEA) because “Only where the statutory language is similar do OCAHO ALJs look for guidance to Title VII and ADEA case law.”]
IER then argued that “the language and structure of [§ 274B and title VII] differ in a critical and telling respect”, that “whereas Title VII lists several provisions that prohibit very specific types of hiring discrimination, Section [274B] has one catch-all provision that uses much broader language to prohibit discrimination — ‘with respect to the hiring ... of [an] individual for employment’”. It concluded that “Congress’ choice of much broader language in Section [274B] must be given its plain language effect: to cover discriminatory job advertising in the inclusive phrase “with respect to the hiring ... of [an] individual for employment” (emphasis in original) and thus “urge[d the ALJ] to rule that a discriminatory advertising claim is cognizable under § [274B]”.
As to regulatory bans on advertising discrimination, Henderson cited 29 C.F.R. § 1630.4(a)(1), making it “unlawful for a covered entity to discriminate on the basis of disability against a qualified individual in regard to … [r]ecruitment, advertising, and job application procedures” and 29 C.F.R. § 1625.4, providing that “Help wanted notices or advertisements may not contain terms and phrases that limit or deter the employment of older individuals.” He noted that § 274B “does not possess a corresponding … implementing regulation which specifically targets discriminatory advertisements” and contended that “the lack of a rule addressing advertising discrimination nearly 40 years after [IRCA] was passed into law augurs against this Court reading one into the statute now”.
Judge Henderson’s auguring makes little sense to me. First, as IER pointed out in its statement, “The regulation implementing [§ 274B] … makes clear that advertising is included in the phrase ‘with respect to ... hiring.’ The regulation [28 C.F.R. § 44.101(h) ] defines ‘hiring’ as ‘all conduct and acts during the entire recruitment, selection, and onboarding process undertaken to make an individual an employee.’”
Second, DOJ’s Civil Rights Division’s own website has a page (“Best Practices for Recruiting and Hiring Workers”) that advises that “[u]nless legally required, avoid language in job postings that limits eligibility based on citizenship status, such as … ‘Only U.S. Citizens’ … ‘H-1Bs Only’ … [and] ‘H-1Bs and OPT Preferred’” and that “Such discriminatory limitations violate the law that IER enforces unless there is a legal requirement to limit hiring based on citizenship status.”
Third, as IER explained in its statement:
The United States has reached many settlements with employers and recruiters addressing discriminatory language in job advertisements, such as “U.S. citizen only” or “only H-1B visa workers.” See, e.g., Justice Department and Department of Labor Secure Agreements with Tech Company to Resolve Discriminatory “Whites Only” Job Posting, U.S. Dep’t of Justice (May 23, 2024) … (announcing agreement to resolve claims that the company committed citizenship status and national origin discrimination, in violation of 8 U.S.C. § [274B](a)(1)], by posting a job advertisement in March 2023 that restricted eligible candidates to “only US Born Citizens”); see also Settlements and Lawsuits … (listing and summarizing IER’s settlements with Georgia Institute of Technology and Cox Communications, Inc, as well as approximately 30 other employers that posted discriminatory job advertisements on the university’s job recruitment platforms as part of their participation in career fairs, for a total of over $2 million in civil penalties); IER’s settlements with e-Teams (Jun. 2024), KForce (Nov. 2023), Amtex Systems, Inc. (May 2022), Secure Apps (Dec. 2022), Ikon Systems, LLC. (Dec. 2020), ASTA CRS, Inc. (Jul. 2022), & Technology Hub, Inc. (Jul. 2022)).
Regulations notwithstanding, DOJ has clearly been talking the talk and walking the walk regarding the cognizability of discriminatory advertising.
As to the central place of job advertising in the hiring process and in § 274B, IER emphasized in its statement that “[J]ob advertising is a classic recruiting practice that is indispensable to hiring. ... Excluding job advertising from statutory coverage would conflict with the plain language of [§ 274B], its implementing regulation, and OCAHO caselaw, while opening an easy avenue for employers to commit hiring discrimination with impunity.”
First, IER argued that:
[Section 274B(a)(1)] prohibits … discrimination … “with respect to the hiring ... of [an] individual for employment.”… “[W]ith respect to” is an inclusive phrase that is at “the linguistic heart of the statute’s protective prohibition against an ‘unfair immigration-related employment practice’” and should be construed broadly. [Quoting OCAHO’s 1990 decision in United States v. Lasa Mktg. Firms.]
Further:
“OCAHO cases have long held that it is the entire selection process, and not just the hiring decision alone, which must be considered in order to ensure that there are no unlawful barriers to opportunities for employment.” [citing OCAHO’s 2024 decision in U.S. Tech Workers v. Vivid Seat]… [OCAHO] has “interpret[ed] and appl[ied] § [274B](a) in a way that considers broadly the totality of the circumstances of the employment process, and ... [has] scrutinize[d] each employment decision within that process for unfair immigration-related employment practices.” [Quoting Lasa Mktg. Firms and citing other OCAHO cases.]
Thus, “Given the critical role advertising plays in hiring and its potential to exclude individuals from job opportunities, it clearly falls within the plain language meaning of the phrase ‘with respect to the hiring ... of [an] individual for employment.’”
Second, IER argued that:
Job advertising is also covered by [§ 274B] because of its close nexus to the ultimate hiring decision. Discriminatory advertising can easily shape the pool of job applicants for a position — the very pool that an employer will draw from to select the candidate who is hired. For instance, an employer that advertises a job for “H-1B visa holders only” but doesn’t consider citizenship or immigration status when choosing which applicant to hire, has already intentionally injected discrimination into its hiring selection by discriminatorily shaping its applicant pool.
IER warned that “Permitting an employer to announce its discriminatory preferences or restrictions through advertising as long as it does not impose them when selecting whom to hire would ignore the[ir] obvious interrelationship … gut § [274B]’s prohibition against hiring discrimination, and provide employers with an easy roadmap for circumventi[on].”
Third, IER argued that:
OCAHO has [already] specifically recognized that discrimination in job advertising can violate § [274B]. For instance, in [an ALJ’s 2021 decision in United States v. Facebook, Inc.], the United States alleged that when filling certain positions, Facebook would abandon its typical recruiting and advertising practices and adopt practices that were intentionally designed to discourage U.S. workers from applying due to the company’s preference for temporary visa holders. … In denying Facebook’s motion to dismiss, OCAHO held that the alleged “ineffective methods of recruitment designed to solicit minimal, if any, response from individuals outside the targeted group of temporary visa holders” stated a claim upon which relief can be granted.
Now, Judge Henderson contended that in Facebook, “discriminatory advertising practices [were merely] evidence of discriminatory hiring practices”, rather than an independent claim upon which relief could be granted. But in Facebook, the ALJ stated that the complaint — filed by the U.S. government, not by an American worker — “has identified a protected group, ‘U.S. workers,’ that allegedly experienced disparate treatment in the recruiting and hiring practices of [Facebook] based on their citizenship or immigration status”. The ALJ concluded that “In totality, the Complaint raises an inference of discrimination as [it] contains facts which ‘reasonably suggest a nexus between Respondent’s decision[s]’ related to divergent recruitment tactics and the citizenship status of affected U.S. workers.” (Quoting OCAHO’s 2020 decision in Montalvo v. Kering Americas Inc..) And the ALJ ruled that “the Complaint states a claim upon which relief can be granted”. To me, OCAHO’s Facebook decision fits better as an affirmation of alleged discriminatory advertising constituting a valid claim upon which relief can be granted. In any event, Judge Henderson does not adequately explain why it does not — and, thus, why he is not disregarding OCAHO precedent.
Despite (or, rather, because of) the weaknesses in his reasoning, Judge Henderson concluded that “discriminatory advertising … does not represent a discrete cause of action under the INA”, based on “the lack of corresponding language in the statute or regulations, as well as the lack of case law in this forum or in others which reads § [274B] to create an independent cause of action for advertising discrimination”.
As to what a complainant must show in order to prevail in a case founded upon a claim of discriminatory advertising, IER explained that:
To prove an individual discrimination claim that rests on an employer’s advertising practices, a complainant must show that (1) respondent engaged in intentional discrimination on the basis of a protected class when advertising or promoting job opportunities or employment, and (2) complainant (if not the United States) was harmed by such practices, usually because they were discouraged from applying to a position that they would have applied to absent the discriminatory practice. ([quoting the Seventh Circuit’s 1994 decision in Lloyd v. Philips Bros., Inc. that] “where an employer ordinarily entertains applications for a certain type of job but a plaintiff is deterred from applying by the very discriminatory practices he is protesting yet can show that he would have applied had it not been for those practices, a sufficient preliminary link between discrimination and adverse consequence is established”).
IER explained that “Proving these two elements would entitle a complainant, at minimum, to ‘an injunction to ensure full and fair consideration in the future regardless of her qualifications,’ and the Court may award a civil penalty for such violation.”
IER clarified that:
A complainant need not show that they were qualified for the position because the violation at issue — using advertising to discourage an individual from applying for a job because of their protected class — occurred before a candidate’s qualifications were even considered or relevant. [citing OCAHO’s 1997 decision in Iron Workers Local 455 v. Lake Constr. & Dev. Corp.] (holding that discrimination in hiring includes the failure to consider for hire, and explaining that “an employer who never considered the qualifications of the applicant may not defend a hiring decision based on those qualifications”). However, a complainant would not be entitled to back pay or instatement as a remedy unless they could provide evidence they were qualified for the position at issue. [Citing OCAHO’s 2011 decision in Eze v. West County Transportation Agency.]
The Consolation Prize
As a consolation prize that offers little consolation, Judge Henderson stated that OCAHO has “considered discriminatory advertising as evidence supporting a claim of discriminatory hiring, recruitment, or referral”.
Henderson cited OCAHO’s 2019 decision in United States v. Chancery Staffing Solutions, LLC., where, in Henderson’s words, “the court considered discriminatory advertising as an element in a claim for discriminatory referral for a fee”. He cited OCAHO’s 2022 decision in Heath v. Tringapps, Inc., where, in his words, “complainant’s allegations that he was a U.S. citizen, applied for a job for which he was qualified, that the position was advertised as a ‘H1B Transfer,’ and that the employer refused to hire him and kept the position open for other applicants were sufficient to state a claim upon which relief can be granted”. In Heath, the ALJ had stated that “Complainant asserts that Respondent manipulated its hiring practices to disqualify him because of his citizenship status, preferring those with H-1B visa status,” and that “Accordingly, Complainant has sufficiently alleged a discrimination claim in violation of [§ 274B].” And he cited Facebook.
This consolation prize offers little consolation to American workers because of the often-insurmountable evidentiary burdens they face in demonstrating that discrimination led to their being passed over for particular jobs, despite blatantly discriminatory advertising making employers’ discriminatory intent crystal clear.
I should note that the policy reasons why workers are not forced to make futile job applications with discriminatory employers in order to have a Title VII cause of action are equally applicable in the § 274B context. The U.S. District Court for the Northern District of Alabama concluded in its 2013 decision in Howell v. Morrison Mgmt. Specialists, Inc.4 that:
There are circumstances in which a plaintiff may be able to establish a prima facie case despite the lack of a formal [job] application. … Thus, an employee may prevail if he can show that he would have applied for the job but was deterred from doing so by the employer’s discriminatory practices. [citing the Supreme Court’s 1977 decision in International Brotherhood of Teamsters v. United States] For example, failure to apply may be excused where an employee refrains from applying due to a justifiable belief that the employer’s discriminatory practices made application a futile gesture.
The Supreme Court concluded in Teamsters that “When a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application.”
The Supreme Court noted that “several Courts of Appeals have held in Title VII cases that a nonapplicant can be a victim of unlawful discrimination … when an application would have been a useless act serving only to confirm a discriminatee’s knowledge that the job he wanted was unavailable to him”. It explained that:
If an employer should announce his policy of discrimination by a sign reading “Whites Only” on the hiring-office door, his victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs. The same message can be communicated to potential applicants more subtly but just as clearly by an employer’s actual practices — by his consistent discriminatory treatment of actual applicants, by the manner in which he publicizes vacancies, his recruitment techniques, his responses to casual or tentative inquiries. [Emphasis added.]
Further, as the Supreme Court explained, “The denial of Title VII relief on the ground that the claimant had not formally applied for the job could exclude from the Act’s coverage the victims of the most entrenched forms of discrimination,” elaborating that:
Victims of gross and pervasive discrimination could be denied relief precisely because the unlawful practices had been so successful as totally to deter job applications from members of minority groups. A per se prohibition of relief to nonapplicants could thus put beyond the reach of equity the most invidious effects of employment discrimination — those that extend to the very hope of self-realization. Such a per se limitation on the equitable powers granted to courts by Title VII would be manifestly inconsistent with the “historic purpose of equity to ‘[secure] complete justice’” and with the duty of courts in Title VII cases “‘to render a decree which will so far as possible eliminate the discriminatory effects of the past.’” [Quoting the Court’s 1975 decision in Albemarle Paper Co. v. Moody.]
Precisely. And this is precisely why job advertisements discriminating against U.S. citizens — or any other protected individuals — need to be independent causes of action under § 274B.
The Attorney General
Attorney General Blanche can undo US Tech Workers v. Boston Consulting Group. 28 C.F.R. § 68.55 provides that:
The Chief Administrative Hearing Officer shall promptly refer to the Attorney General for review any final order in cases arising under section 274A, 274B, or 274C of the INA if the Attorney General so directs the Chief Administrative Hearing Officer. … For cases arising under section 274B, the Attorney General may so direct … within no more than sixty (60) days of the entry of a final order by the [ALJ].
Further, “The Attorney General shall enter an order that adopts, modifies, vacates, or remands the final order under review.” I would urge Attorney General Blanche to consider doing so — to combat the most invidious effects of employment discrimination in America against American citizens. The clock is ticking — the attorney general has until mid-October to decide.
End Notes
1 H. Rept. 99-1000 at 87-88 (1986).
2 OCAHO No. 2024B00040 (Aug. 12, 2026).
3 U.S. Tech Workers v. W.W. Grainger, Inc., OCAHO No. 2024B00045 (Jan. 16, 2025).
4 2013 U.S. Dist. LEXIS 175673 (N.D. Ala. 2013).