Regulations

Federal Agencies to Crack Down on Employers Using Foreign Hires

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On July 31, 2018, the U.S. Department of Labor (DOL) issued a press release disclosing the recently formed interagency partnership between the U.S. Department of Justice (DOJ) Civil Rights Division Immigrant and Employee Rights Section (IER) and the DOL’s Employment and Training Administration, Office of Foreign Labor Certification (OFLC) to stop discrimination against U.S. workers and to help identify employers in noncompliance with foreign labor certifications.

A memorandum of understanding (MOU) between the two agencies highlights the extent of information sharing between the DOJ and DOL. In particular, DOL will provide specific DOJ employees access to databases to help facilitate investigations into violations of employment discrimination laws. DOJ also will provide DOL with specific cases of suspected noncompliance, with laws to be enforced and administered by the OFLC.

The MOU also comments on the efforts of the DOJ’s Civil Rights Division to collaborate with other federal agencies, such as the Department of State and the Department Homeland Security, to combat discrimination against U.S. workers by employers improperly using temporary visa workers.

This is not the first time the DOJ has formed an interagency partnership in the name of protecting U.S. Workers. The DOJ and U.S. Citizenship and Immigration Services, (USCIS) has established a framework to help manage and maintain information sharing and interagency case referrals relating to employer discrimination against qualified U.S. workers.

Both memos are consistent with the Protecting U.S. Workers Initiative launched by the DOJ’s Civil Rights Division in 2017. That initiative is aimed at targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of foreign visa workers.Since inception, employers have had to pay over $285,000 in pack pay to workers subjected to discrimination.

Acting Assistant Attorney General John Gore of the Civil Rights Division commented on the memo, stating, “Employers should hire workers based on their skills, experience, and authorization to work; not based on discriminatory preferences that violate the law… Our partnership with DOL, formalized today, significantly enhances the Civil Rights Division’s ability to identify employers that favor temporary visa holders over U.S. workers who can do the job.”

As federal agencies continue to amp up their processes for protecting U.S. workers, employers should be prepared to comply with immigration and employment laws and have necessary documentation readily available. The Immigration and Nationality Act (INA) prohibits national origin and citizenship status discrimination in business operations, including hiring, firing, recruitment and documentary practices. Employers who seek out temporary visa workers over qualified U.S. workers may be in violation of the INA.

Employers that violate the law may be subject to more penalties, payments of back wages, legal scrutiny and worksite visits and investigations. Employers need to be mindful that their employment practices and policies reflect the latest immigration laws and related legislation.

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