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Jul 29, 2020

U.S. Department of Justice Slaps Down Company's Attempt to Hire Only Foreign Workers

David Spaulding

Summary:

On July 27, 2020, the U.S. Department of Justice (DOJ) announced a settlement with ASTA CRS Inc. of Virginia (“ASTA”) which resolves complaints that ASTA discriminated against U.S. workers in hiring.  Of issue was ASTA’s job announcements and procedures which sought exclusively foreign workers and made clear the company’s preference for hiring non-U.S. persons.  These were violations of the Immigration and Nationality Act (INA) and the settlement saddles ASTA with policy changes, training, and DOJ oversight.

Background:

INA, 8 U.S.C. Section 1324b – Unfair immigration-related employment practices:

(a) PROHIBITION OF DISCRIMINATION BASED ON NATIONAL ORIGIN OR CITIZENSHIP STATUS

(1) GENERAL RULE It is unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien, as defined in section 1324(h)(3) of this title) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or discharging of the individual from employment –

(A) because of such individual’s national origin, or

(B) in the case of a protected individual (as defined in paragraph (3)), because of such individual’s citizenship status.

The section goes on to limit application of this rule to employers of three or more people and to make clear that persons authorized to work must be treated fairly in recruitment, hiring, employment, and discharge.

(See https://www.law.cornell.edu/uscode/text/8/1324b .)

Section 1324 complaints are filed with the U.S. DOJ, Civil Rights Division, Immigrant and Employee Rights Section (IER), a division tasked with investigating immigration discrimination in employment.

ASTA’s Violations:

The SETTLEMENT AGREEMENT between DOJ and ASTA (“Settlement Agreement”) states that, in August 2019, ASTA posted a job advertisement online which specifically sought “non-U.S. citizen applicants, including students who hold F-1 nonimmigrant visas, for entry-level positions.”  This prompted two U.S. citizen complaints of discrimination to the IER.  The IER investigation validated the complaints and instituted proceedings against ASTA.

By recruiting only foreign workers, present in the U.S. on temporary visas, ASTA was in direct violation of Section 1324.  Simply stated, an “authorized worker” is authorized to work U.S. jobs and employers don’t get to discriminate against classes of workers because of where they came from, unless they are engaged in very specific, mostly government contract, work which requires U.S. citizen employees only.

In ASTA’s case, whole classes of authorized workers were barred from applying for these jobs.  They discriminated against Lawfully Admitted Permanent Residents, U.S. Nationals, and U.S. Citizens as well as other non-immigrants authorized to work in the U.S.  By doing so in recruitment, the discrimination was well and fully documented prior to the IER investigation.

The Settlement:

ASTA has reached a settlement with DOJ on these matters:

“Under the terms of the settlement agreement, ASTA will train its employees on the requirements of the INA’s anti-discrimination provision, change its policies and procedures to comply with this law, and be subject to two years of department monitoring requirements, including providing regular reports to the department.”

Bottom Line:

INA, 8 U.S. Code, Section 1324a bars the employment of unauthorized workers and employers are required to document worker identity and authorization on the Form I-9, Employment Eligibility Verification. Employers are barred from discriminating against authorized workers in recruitment, hiring, employment, and termination; this includes authorized foreign workers, U.S. permanent residents, U.S. nationals, and U.S. citizens.

Fortunately, United States Citizenship and Immigration Services (USCIS) maintains extensive and user-friendly guidance through its “I-9 Central” and many routine questions are easily answered there.  Additionally, USCIS provides an online and printable Form M-274, Handbook for Employers, to the public, a document I universally recommend that clients print and use in employment actions.

The Green and Spiegel compliance and enforcement practice is perfectly positioned to help companies manage these matters.  We provide defense work in IER matters and assist in crafting sound policies, providing training, self-auditing and analysis, and responding to worksite enforcement matters generally.  We have the experience and capacity to serve client compliance interests.

If your company wants help with such matters, please contact our compliance and regulatory enforcement team at Green and Spiegel, LLC.  You can also call or text me directly at 484-645-4194 or email me at dspaulding@gands-us.com.

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