Fakhoury Global Immigration
As many stakeholders have learned, Facebook was cited for improper immigration practices based on its PERM labor certification procedures. Two consent orders were recently issued — one with the Department of Justice (DOJ) and one with the Department of Labor (DOL).
The background begins in 1986 when the Immigration Reform and Control Act (IRCA) was enacted to “fix” our then-broken immigration system. One of the far-reaching parts of IRCA was the creation of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to discourage and prevent discrimination against job applicants who did not appear to be American-born. Thirty-five years later, this office brought discrimination charges against Facebook for their practices and procedures involving PERM applications for thousands of foreign H-1B workers.
The PERM Rule introduced a highly improbable regulatory scheme in late 2004 after years of evolving standards, during which approvals originally based on occupational statistics transitioned into individual tests of the job market. The unfortunate, but not unforeseen, consequence has been that employers walk a narrow line between their statutory right to obtain permanent residency for hand-picked workers and the opposing requirement to offer bona fide job offers to U.S. workers who respond to their recruitment efforts.
The Facebook lawsuits are well overdue since there has never been a federal court judicial analysis of these competing rights and obligations in the context of IRCA’s anti-discrimination statute, although PERM experts have long been aware of this tension in placing advertisements open to US workers, a term of art which describes persons with permanent work authorization.
The Lawsuit and the Audits
Both the U.S. Department of Justice (DOJ) and the U.S. Department of Labor (DOL) have found violations of the PERM regulations in the applications filed by Facebook and its subsidiaries and affiliates.
Beginning in 2018, the DOJ undertook an investigation of Facebook’s PERM applications. On December 3, 2020, the DOJ’s Civil Rights Division, Immigrant and Employee Rights Section (IER), filed a lawsuit before the Office of the Chief Administrative Hearing Officer titled United States of America v. Facebook, Inc., alleging that the company violated the anti-discriminatory provision of the Immigration and Nationality Act (INA) by failing to consider or hire U.S. workers for positions advertised as part of PERM recruitment, choosing instead to reserve jobs for temporary visa holders through the PERM process. Facebook denied these allegations.
DOL’s actions against the company started in August 2020, when the Employment and Training Administration (ETA) issued 126 audit letters of certain Facebook PERM applications followed by requests for information on those applications. Facebook responded, and in May-June 2021, agreed to pause processing of pending PERM applications to facilitate settlement discussions between the parties.
The Settlement Agreements
On October 19, 2021, both the DOJ and the DOL entered into separate Settlement Agreements with Facebook to resolve the pending matters that the agencies had raised against the company. The term of both agreements is three years following the effective date, and demonstrate a cross-over between the stated, legislative purpose of the two agencies.
The DOJ Settlement contains both a monetary component and PERM processing requirements. Facebook must pay a civil penalty of $4.75 million to the U.S. Treasury and $9.5 million to a Settlement Fund for U.S. workers who meet the definition of “Qualified Individuals” as described in the Agreement. The PERM processing requirements include:
- Post all PERM-related positions on Facebook’s Careers website in the same manner as other roles are posted without indicating that they are related to a PERM filing.
- Accept electronic applications for all PERM-related positions on its Careers website as for other roles posted.
- Enter all applicants for PERM-related positions into Factbook’s recruiting system.
- Not require or encourage applicants to apply via mail for PERM-related positions.
- Ensure online functionality is enabled to allow applicants for PERM-related positions to apply through state workface agency websites, where that option exists.
- Issue a written statement to U.S. based recruiters about their obligations under the non-discriminatory provisions of the Immigration and Nationality Act (INA).
- Provide recruiters with training on the INA’s anti-discrimination requirements.
- Provide recruitment reports to IER prepared during the prior six-month review period of each of Facebook’s PERM-related positions during the period.
The DOL Settlement includes additional recruitment steps that will be required for pending and prospective PERM applications. Those steps mirror the terms of the DOJ Settlement and include additional specific steps:
- Publish the Notice of Filing of the PERM applications in the company’s in-house media.
- Utilize a job search website other than Facebook as one of the additional recruitment steps, with specific sites named in the agreement.
- Utilize a trade or professional organization publication as one of the additional recruitment steps.
The DOL Agreement permits Facebook to withdraw the 126 audited PERM applications and the currently pending applications within 120 days of the effective date of the Agreement and requires that Facebook not file any new PERM applications during this 120-day period while it implements changes to its internal systems. The Agreement is replete with deadlines for Facebook’s compliance with DOL benchmarks.
Impact and Implications
In the coming months, employers and PERM practitioners will be assessing the potential impact of the DOJ and DOL Settlements on their PERM programs. What is clear is that the government will be holding employers to more rigorous application of the PERM regulations. Assistant Attorney General Kristen Clarke of the DOJ’s Civil Rights Division laid out the standard: “Facebook is not above the law…Companies cannot set aside certain positions for temporary visa holders because of their citizenship or immigration status. This settlement reflects the Civil Rights Division’s commitment to hold employers accountable and eradicating discriminatory employment practices.” In the same vein, the DOJ’s Solicitor stated:
“No matter an employer’s size or reach, the Department of Labor is committed to vigorously enforcing the law.”
In these Agreements, both the DOJ and the DOL have placed Facebook on a tight tether in their PERM processing for the next three years. The Agreements suggest that the government will continue their interest in their enforcement powers over PERM practices. Employers and attorneys are well-advised to take note. Employers must continue to walk a fine line between their interest in obtaining permanent residency for specific foreign workers on whose behalf they seek to obtain labor certification and the need to offer bona fide job offers to U.S. workers in all PERM applications.
In Part Two, the author will analyze in further detail the technical standards of PERM recruitment procedures that may enable stakeholders to avoid accusations of discrimination or bad faith.
The information provided in this article does not, and is not intended to, constitute legal advice. Instead, all information contain herein are for general informational purposes only. Comments from readers are most welcome and may be addressed to the author at email@example.com or to Fakhoury Global Immigration at firstname.lastname@example.org or by phone to 248.643.4900