The Department of Justice (DOJ) has announced a settlement with a Baltimore-based construction company which it alleges discriminated against U.S. workers in violation of the Immigration and Nationality Act. This is another of many companies that have recently been accused by the DOJ of favoring foreign nationals with H-2B visas over U.S. workers such as citizens, nationals, asylees, and refugees for certain positions.

Employers are required to consider domestic applicants without letting a preference for a specific immigration or citizenship status play a part in the hiring decision. These rules intended to protect domestic workers are enforced in part by the Civil Rights Division of the Department of Justice.

In this case, the Civil Rights Division’s investigation alleges that in the time frame from January 1st, 2019 to March 11th, 2019, this employer had discriminated against domestic workers by not fairly considering them for positions as temporary laborers due to a preference for employing workers with H-2B visas.  The company claimed as the basis for hiring H-2B workers that there were insufficient U.S. workers to fill its openings, but according to the Division’s own investigation, it was failing to consider the number of qualified U.S. workers that had applied by the relevant deadline, which the company would be required to employ prior to sponsoring foreign nationals for the position.

Further, the DOJ alleges that the company attempted to discourage U.S. workers from applying by placing unnecessarily restrictive requirements in its job announcement during the period, including requiring three months of experience in a position where it would otherwise accept only a single month of experience.  

Under this new settlement, the employer has agreed to pay civil penalties amounting to $40,600 and to perform enhanced recruiting of U.S. workers and increased advertising for open positions. Under the settlement, the company will be subject to mandatory monitoring and reporting requirements and has agreed to provide employees training on INA anti-discrimination requirements.

The anti-discrimination requirements of the INA are enforced by the Civil Rights Division’s Immigrant and Employee Rights Section, and these provisions cover a number of topics, from discrimination on the basis of citizenship and national origin to charging fees for the referral.

Employers choosing to hire H-2B workers face a number of requirements and the potential for hefty fines for noncompliance. In order to hire these workers, they must first undergo the hiring requirements we discussed above and then file and maintain an accurate Form I-9. This can be an arduous task that many employers struggle with. The best way to handle this is with an electronic I-9 management tool which can ensure an accurately complete I-9 every time and help keep it maintained for as long as it is needed for review at any time.