DOJ Policy on Job Ads for H-1B Workers Raises Concerns
The Department of Justice has permitted business groups to specifically target resident H-1B workers and other non-immigrant foreign workers in job postings, effectively excluding many Americans. This policy shift, which was introduced in early August by an agency attorney, complicates efforts for everyday Americans to challenge potential job discrimination, as noted by John Miano, an attorney who has pursued several lawsuits against discriminatory practices in the tech sector.
Miano expressed frustration, stating, “All the progress made in 25 years for prosecuting companies over H-1B-related anti-American job discrimination is undone.” With Congress unlikely to intervene, he suggested that the only recourse now may involve expensive litigation at the Sixth Circuit Court of Appeals.
The policy originates from an Administrative Law Judge (ALJ) associated with the Office of the Chief Administrative Hearing Officer, which is tasked with reviewing national discrimination claims. The ruling emphasizes that “discriminatory advertising does not represent a discrete cause of action under the Immigration and Nationality Act,” or INA, further clarifying that signs of advertising bias can be considered only as part of broader allegations related to nonselection or recruitment.
The legal framework currently restricts how discrimination in advertising can be addressed and limits it to cases involving nonselection, recruitment, or termination.
This approach appears to disadvantage American professionals by framing the inclusion of H-1B workers through old affirmative action rules that were meant for underrepresented groups, according to Miano.
The Justice Department has, however, asserted that it is committed to addressing discrimination against American workers. It recently highlighted its efforts through the Protecting U.S. Workers Initiative, which has resulted in significant settlements with major companies for unfair hiring practices. Recently, the department imposed a $5 million penalty on grocery giant Instacart for excluding American candidates from certain job openings reserved for visa workers seeking permanent residency.
Additionally, Assistant Attorney General for Civil Rights, Harmeet Dhillon, has been active in challenging companies for neglecting American job seekers. Vice President JD Vance and top officials have criticized various visa programs, asserting that they negatively impact American workers and advocating for regulatory reforms that have yet to overcome legal challenges posed by businesses utilizing these visa workforces.
It has been estimated that over 1.5 million white-collar roles have been filled by mixed-skill visa workers at the expense of American employees, resulting in instances of hiring fraud and discriminatory practices in the workplace. This pattern of expatriating jobs has raised concerns about innovation stagnation and economic growth, especially as American graduates are increasingly pushed out of key sectors such as technology, finance, and healthcare.
Vance pointed out that the original intent of the H-1B program was to attract top-tier talent that could not be found domestically. However, he lamented that the program has become correlated with extensive fraud and abuse, citing specific cases where American layoffs coincided with the filling of those roles by foreign workers.
Microsoft laid off 6,000 American employees last year while simultaneously acquiring over 6,000 H-1B visas.
Blanche also raised alarms about the longstanding practices that favor foreign workers, effectively closing doors for many American job seekers. Miano, who is a part of US Tech Workers, has repeatedly spoken out against the escalating reliance on foreign visa workers over domestic talent, highlighting the adverse effects on the American labor market.
Concerns have been raised regarding the influence of Wall Street investors in shaping the H-1B visa program, which has sidelined American workers since its inception in the 1990s. Miano argues that this influx of global talent has shifted wealth and opportunities away from millions of Americans, benefitting corporations and investors instead.
Trump holds the potential to enforce stricter regulations on the program, requiring companies to substantiate their hiring practices to ensure they don’t disadvantage Americans. So far, though, efforts to reform the policy have stumbled amid various lawsuits.
Miano suggested that Vance should engage with President Trump to advocate for stronger measures to bolster the American middle class and professional landscape.
“Mr. President, do you realize you’re bringing in more computer workers on H-1B visas than you’re creating jobs?”
While Trump acknowledges the complexities of immigration politics, emphasizing the challenge of striking a balance, he has also indicated that securing votes is a crucial element of policymaking.
