Maksim Kabakou -

H-1B lawsuit against Facebook tackles old problem

The Dept. of Justice's H-1B lawsuit alleges Facebook didn't consider qualified U.S. workers for visa jobs and shines a light on employer job advertising requirements.

Employers sponsoring an employee through the H-1B work visa program for permanent residency, employment-based green cards have to make a case for approval. One of the things employers must do is advertise for U.S. workers "able, willing [and] qualified" to do the work before filling the job with a visa holder.

In a lawsuit, the U.S. Dept. of Justice (DOJ) is alleging that Facebook Inc. didn't follow that process and created a hiring system that denied U.S. workers "a fair opportunity" to apply for some 2,600 jobs.

The government's H-1B lawsuit, which was filed Thursday, stated that Facebook didn't conduct a "genuine search" for U.S. workers. It didn't advertise positions on its career website, for instance, and "require[d] candidates to mail in their applications" rather than submit electronically. The lawsuit also claims the social media giant was "refusing to consider any U.S. workers who applied for those positions."

The Justice Dept. said its investigation covered a nearly two-year period from the beginning of 2018 to the end of 2019.

Because of longstanding complaints around the visa hiring requirements, it may seem surprising that Facebook is facing the H-1B lawsuit. Employers can legally advertise jobs in ways that can ensure they are not widely seen by U.S. workers, something that has long been criticized by government officials.

A Dept. of Labor inspector general report from 1996 called the U.S. employee job filling requirement "perfunctory at best and a sham at worst." Another Labor Dept. inspector general report released in November was also critical. The law requires posting the job opening on a state workforce agency website and in a newspaper on two different Sundays, it noted.

"Newspapers are becoming a less effective means of notifying potential applicants in the U.S. about job opportunities," the inspector general stated in the November report. Workers are "much more likely to turn to the internet and not newspapers to search for work."

Apart from newspaper and workforce agency requirements, employers have to perform three of 10 other recruitment steps: attend a job fair; advertise on an employer's website; advertise on a third-party job search website; participate in an on-campus recruiting effort; make use of a trade or professional organization for recruiting; employ a private employment firm; offer an employee referral program with incentives; provide a copy of the job opportunity to a campus placement office; advertise in local and ethnic newspapers; create radio and TV advertisements.

Apply by mail

It's common for employers to ask for job applicants to apply by mail, said Joseph Asir, an immigration attorney at Davidoff Hutcher & Citron LLP in New York. "That immediately cuts out a whole bunch of U.S. workers who may or may not apply," he said. But the apply-by-mail process also creates a paper trail that can help in a government audit, he said.

"There are a lot of different tactics employees use to avoid hiring U.S. workers because they feel that this H-1B worker has been around for a long time and they want them to continue on a permanent, long-term basis," Asir said.

U.S. workers have not had a fair shot at these jobs, even though that's the clear intent of the policy.
Ron HiraAssociate professor of political science, Howard University

Ron Hira, associate professor in the department of political science at Howard University, said that generally, "U.S. workers have not had a fair shot at these jobs, even though that's the clear intent of the policy."

The Labor Dept should "update its rules to ensure program practice meets the intent that the labor market is actually tested," Hira said. "Firms appear to be going through the motion."

In its H-1B lawsuit, the DOJ suggested that Facebook has deeper motivations in sponsoring employees for employment-based green cards.

The Justice Dept. said that "not only do Facebook's alleged practices discriminate against U.S. workers, they have adverse consequences" on the H-1B work visa holders.

Facebook is a major employer of H-1B workers. The government considers it "dependent," a designation for employers with 15% or more of its employees on the visa.

"An employer that engages in the practices alleged in the lawsuit against Facebook can expect more temporary visa holders to apply for positions and increased retention post-hire," said the Justice Dept., in its statement explaining the lawsuit. Temporary visa holders "often have limited job mobility and thus are likely to remain with their company until they can adjust status, which for some can be decades."

Next Steps

Biden favors green cards over H-1B work visas

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