Ministry of Justice legal regulations discourage hiring of highly skilled immigrants

The US government can force a company to pay millions of dollars in fines even if the employer complies with Department of Labor (DOL) rules on sponsoring immigrants in employment. That’s the message businesses will get from a legal settlement between Facebook and the Justice and Labor Departments (DOJs). Critics of the government lawsuit, originally filed under the Trump administration, note that the U.S. government is discouraging employers from sponsoring highly qualified foreign nationals for permanent residence at a time when less than 30% of university students graduate Americans in key technical areas are American. students, and there are over 1.2 million jobs in computer professions in America.

Background: U.S. immigration law does not not forcing employers to test the job market by placing ads and showing that no eligible U.S. worker could fill the job. The Ministry of Labor invented this regulatory requirement.

“Although immigration law requires ‘labor certification’ for most employer-sponsored immigrants, the Department of Labor created the current system from scratch,” according to a National Foundation for U.S. Policy ( NFAP) report. “As lawyer Gary Endelman writes, ‘There was no mention of individualized recruitment in the proposed labor certification regulation of November 19, 1965, or the final version of those same application rules that came out. December 3, 1965. It made no sense that employers had to advertise.

When the 1965 Immigration Act became law, Senator Edward Kennedy (D-MA) said, “It was not our intention, nor that of the AFL-CIO, that all candidates for the immigration have to undergo a very detailed job analysis which could take a long time. and disrupts the normal flow of immigration. DOL could use the available statistical data on employment, according to Kennedy.

However, today a book published that explains how companies must comply with DOL’s labor certification requirements is almost 900 pages long and weighs almost 7 pounds. According to lawyers, sponsoring an employee from an initial H-1B petition through to permanent residence can cost $ 20,000 or more.

The accusation against Facebook: In December 2020, the Ministry of Justice lodged a complaint which alleged that Facebook failed to hire American workers when it sponsored immigrants for employment and posted advertisements to comply with Department of Labor regulations for the PERM (Permanent Labor Certification Program). The Justice Department claimed that Facebook had dissuaded American workers by requiring that applications be submitted by mail, and no American workers were hired in the process.

Among the problems with the DOJ accusation: The DOJ accused Facebook of not hiring American workers even though that is not the purpose of the test required by the government under PERM. The goal, under DOL regulations, is to use American workers to respond to advertisements so that employers can “test” the job market, not as a vehicle to recruit American workers. In addition, the Ministry of Labor has established the PERM process with no obligation to provide an e-CV response option to apply to advertisements mandated by the DOL.

“A US employer is not required to hire the US worker when recruiting in conjunction with labor certification, and is required to recruit in good faith in accordance with the recruiting rules, which DOL has recognized deviating from an employer’s normal recruiting practices, ”Immigration said. lawyer Cyrus Mehta in an interview as the DOJ filed the case.

The rule: On October 19, 2021, the DOJ and DOL announced settlement agreements with Facebook. “Under the DOJ settlement, Facebook will pay a civil fine of $ 4.75 million to the United States, pay up to $ 9.5 million to eligible victims of Facebook’s alleged discrimination, and train its employees on the demands. anti-discrimination of the INA “, according to a DOJ-DOL joint press release. In addition, Facebook will be required to conduct more extensive publicity and recruitment for its employment opportunities for all PERM positions, accept electronic resumes or applications from all U.S. workers who apply, and take other steps to ensure that its recruitment for PERM positions closely matches its usual recruitment practices…. Under the DOL OFLC [Office of Foreign Labor Certification] regulation, Facebook will conduct additional notice and recruiting for U.S. workers and be subject to ongoing audits to ensure compliance with applicable regulations.

What businesses need to know: “Like the press release for the settlement notes, this is a significant financial penalty, employers will certainly take notice, and I would expect many companies to at least review their PERM program to see if changes need to be made. done, ”Kevin Miner, partner at the law firm Fragomen, said in an interview.

“The settlement agreement itself is quite informative in terms of what DOL looks for employers to do with their PERM recruiting practices,” Miner said. “As part of the regulation, Facebook has agreed to take certain approaches to its PERM labor market testing that are really not required by the plain language of the PERM regulation. This includes posting all PERM-related positions on its Careers website and ensuring that candidates can apply for positions electronically rather than by mail. Most companies are already doing these things as part of their labor market test, so for most companies this won’t make a difference in terms of day-to-day practice.

“However, the PERM regulations make it very clear that posting on the company’s career site is an optional form of recruitment rather than a mandatory one. The regulation makes it mandatory for Facebook, and I think businesses will need to consider whether or not to prioritize posting to a careers website over some of the other recruiting options that the PERM regulation clearly provides. The regulations also make it clear that requiring applicants to apply by mail is, at best, not a mechanism the government wants employers to use. As employers do not currently accept applications electronically at this stage, continuing to require applications by post seems riskier in light of this regulation. “

What also seems risky, critics note, are government policies aligned against highly skilled immigration despite the need for foreign-born professionals and the desire to encourage a greater emphasis on green cards for foreign nationals. highly skilled.

“There are more than 1.2 million unique active job postings in IT occupations in the United States as of September 6, 2021, up 15% from 6 months earlier,” according to data from Emsi Job Posting Analytics, according to an NFAP analysis. “The data indicates a significant talent gap in the United States between the demand for highly skilled technical labor and the ability of the US labor force to meet that demand.”

There is no evidence that Facebook violated the Department of Labor’s PERM regulations for employment-based immigrant sponsorship, nor, ironically, the DOJ and DOL have claimed that Facebook committed such a violation. . “While we firmly believe that we have followed federal government standards in our Permanent Labor Certification (PERM) practices, we have reached agreements to end the ongoing litigation and move forward with our PERM program. , which is an important part of our overall immigration program, ”a Facebook spokesperson said in a report. “These resolutions will allow us to continue to focus on hiring the best builders in the United States and around the world, and support our internal community of highly qualified visa holders seeking permanent residence.”

The Justice Department has shown little concern that Facebook is adhering to Department of Labor regulations or that its actions may discourage companies from sponsoring highly skilled foreign nationals during a time when businesses and the U.S. economy have been struggling. need for more qualified scientists and engineers to develop. For the Department of Justice, the price was clear: “Today’s Civil Penalties and Arrears Fund represents the biggest fine and the biggest sum of money the Division has ever collected in the course of the year. of the 35 years of INA history. [Immigration and Nationality Act’s] anti-discrimination provision.