By Gladys Gervacio and Zoe Mirza

In December 2020, the Department of Justice (DOJ) filed a suit against Facebook, Inc. claiming that the company discriminated against United States workers by reserving certain permanent job opportunities for foreign nationals on temporary work visas. The lawsuit’s outcome could impact how US companies sponsor permanent foreign workers.

Allegations of Discriminatory Hiring Practices

The DOJ alleges that Facebook did not correctly follow the permanent labor certification (PERM) process for sponsoring foreign workers for employment-based green cards. Specifically, Facebook allegedly did not advertise for these openings fairly.

Normally during the PERM process, the sponsoring employer must test the labor market and make good faith recruiting efforts to demonstrate that:

• There are no US workers able and available to fill the position being offered to the foreign worker, and
• Hiring the foreign worker will not adversely impact local ones in terms of wages and working conditions.

The DOJ alleges that Facebook used different methods to recruit for its positions reserved for foreign workers than it uses for regular positions, therefore not making a good faith effort to recruit US workers. For example, Facebook allegedly required application submissions by mail for positions reserved for foreign workers, while they allowed email submissions for other job openings.

Critics argue that the PERM process requirements, such as advertising jobs in print format, already deviate from most companies’ standard recruitment efforts.

The Impact for Employers

The lawsuit is especially troubling for US companies. If Facebook is found guilty, it could become more complicated to sponsor foreign workers on green cards. This would force foreign workers to leave the US when their temporary work visas run out, and companies could miss out on critical talent.

Our team will closely watch the development of this case and provide any updates as soon as they are available. Please contact your Chugh, LLP attorney for case-specific questions.