In 2023, the U.S. Department of Justice (DOJ) took legal action against and reached settlements with several employers accused of creating unlawful barriers that hindered work-authorized foreign nationals from pursuing employment opportunities in the United States. Some of these employers were well-known companies, highlighting that even organizations with significant resources are not immune to unintentional or intentional involvement in immigration-related discrimination. One of these employers, SpaceX, has also presented a legal challenge that has the potential to reshape the landscape of the DOJ’s enforcement of immigration-related discrimination.
Examples of DOJ’s Enforcement of Immigration-Related Discrimination
These examples, which represent only a few of DOJ’s 2023 settlements and lawsuits, underscore the vital need for employers to ensure that everyone involved in their recruitment and onboarding processes understands the Immigration and Nationality Act (INA) and its impact on their actions (or at least know who they need to involve when making a decision that involves non-U.S. workers). Furthermore, employers should conduct regular audits to identify potential risks and areas for improvement, allowing employers to fine-tune their policies, procedures, and training.
It’s important to note that a settlement does not necessarily indicate guilt, but these DOJ lawsuits and settlements shed light on alleged practices that crossed legal boundaries. Here are some recent immigration-related discrimination cases involving notable employers:
As we previously reported, Apple reached a $25 million settlement with the DOJ after DOJ alleged that Apple had implemented unequal recruitment practices under the Department of Labor’s (DOL) foreign labor certification program, called the Program Electronic Review Management (PERM), creating disparity in the likelihood of qualified U.S. workers applying of having their applications considered for PERM program positions compared to other roles.
The DOJ alleged that UPS discriminated against a lawful permanent resident by rejecting the worker’s documentation needed to obtain an airport badge, despite the worker providing valid and acceptable documents according to airport authority rules. UPS’s refusal to submit a badge application on his behalf obstructed him from completing certain job duties. Additionally, UPS retaliated against the worker by terminating his employment after he reported the discrimination.
Georgia Tech was found to be in violation of the Immigration and Nationality Act (INA) for operating a recruiting platform where employers paid to post job opportunities and career fairs. DOJ alleges that the platform unlawfully discouraged or restricted non-U.S. citizens, who were otherwise authorized to work in the U.S., from applying for positions.
4. SpaceX: Ongoing Lawsuit, but SpaceX may be successful in fighting back
In August, the DOJ filed a lawsuit against SpaceX for regularly discouraging eligible asylees and refugees from applying and refusing to hire or consider them based on their citizenship status. SpaceX incorrectly asserted that they could only hire U.S. citizens and lawful permanent residents due to export control laws. However, asylees and refugees in the U.S. possess work authorization that does not expire, putting them on equal footing with U.S. citizens and lawful permanent residents under these laws.
Space X subsequently filed a complaint that raises a constitutional challenge to the DOJ’s authority to bring any discrimination claims. This challenge is rooted in conflicts in the Congressional Appointments Clause, which stipulates that the Attorney General must possess the authority to review the decisions of all “inferior officers”, which would include Office of the Chief Administrative Hearing Officer (OCAHO) Administrative Law Judges (ALJs), and the INA § 274B(g)(1) which states that the decision rendered by OCAHO ALJ’s are not subject to review by the Attorney General.
Judge Rolando Olvera of the U.S. District Court for the Southern District of Texas has sided with SpaceX’s complaint and consequently granted a preliminary injunction in the case. If SpaceX’s challenge is upheld in subsequent legal proceedings, it could result in the DOJ being prohibited from pursuing discrimination lawsuits related to immigration in the context of employers’ hiring practices and PERM labor certification procedures.
We will continue to keep you apprised of developments in this important case.
All these cases highlight the potential pitfalls that employers may encounter when making decisions concerning foreign national workers without consulting experienced immigration legal counsel to ensure their policies, procedures, and assumptions comply with the INA. Whenever an employer is involved in decisions related to recruitment, hiring, onboarding, relocation, promotion, or termination of non-U.S. workers, it is crucial to seek guidance from trusted immigration attorneys to make well-informed decisions that safeguard their organization from legal risks.