Justice Department sues Facebook over H-1B workers

Lawsuit argues social media giant purposely overlooked U.S. workers

Facebook CEO Mark Zuckerberg during a House hearing in October 2019. “Facebook’s discriminatory recruitment and hiring practice is routine, ongoing, and widespread,” the Justice Department said in its lawsuit. (Bill Clark/CQ Roll Call file photo)
Facebook CEO Mark Zuckerberg during a House hearing in October 2019. “Facebook’s discriminatory recruitment and hiring practice is routine, ongoing, and widespread,” the Justice Department said in its lawsuit. (Bill Clark/CQ Roll Call file photo)
Posted December 3, 2020 at 7:22pm

The Trump administration filed a lawsuit Thursday against Facebook, alleging the social media company discriminated against Americans by favoring temporary foreign workers.

The lawsuit alleges that between January 2018 until at least Sept. 18, 2019, Facebook refused to recruit or actively hire qualified U.S. workers for more than 2,600 positions. Instead, the company reserved those spots for H-1B visa holders and other temporary immigrant workers, according to the lawsuit filed by the Justice Department.

U.S. businesses that want to hire foreign workers must go through the permanent labor certification process, which requires companies to first prove there are no qualified and available U.S. workers for the positions they seek to fill.

The Justice Department said its nearly two-year investigation determined that Facebook failed to conduct a genuine search for qualified domestic workers and intentionally saved thousands of positions for foreigners.

“Facebook’s discriminatory recruitment and hiring practice is routine, ongoing, and widespread,” it said in its lawsuit. “It discriminates against U.S. workers because of their immigration or citizenship status, and it harms them by limiting their ability to apply, to be considered, and to be hired for all (qualified) jobs at Facebook.” 

The lawsuit seeks civil penalties against the company as well as back pay on behalf of U.S. workers who were denied employment at Facebook because of the alleged discrimination.

“The Department of Justice’s lawsuit alleges that Facebook engaged in intentional and widespread violations of the law, by setting aside positions for temporary visa holders instead of considering interested and qualified U.S. workers,” Assistant Attorney General Eric S. Dreiband of the Civil Rights Division said in a statement Thursday.

“Our message to workers is clear: if companies deny employment opportunities by illegally preferring temporary visa holders, the Department of Justice will hold them accountable.”

Facebook spokesman Andy Stone said in a statement: “Facebook has been cooperating with the DOJ in its review of this issue and while we dispute the allegations in the complaint, we cannot comment further on pending litigation.”

The H-1B nonimmigrant visa program allows U.S. employers to hire nonimmigrants to work in specialty occupations. It is most often associated with the tech sector, and enjoys wide support in Silicon Valley, but is also used to employ workers in academic, health care and business roles.

The DOJ lawsuit comes just days after a California federal judge struck down a pair of Trump administration policies that would make it harder for foreign workers to qualify for the H-1B visa program.

In October, the Labor and Homeland Security departments issued rules targeting the program. The Labor rule, which went into effect Oct. 8, requires U.S. employers to pay H-1B workers higher wages. The DHS rule, which was scheduled to become effective Dec. 7, would narrow the definition of “specialty occupations” eligible for H-1B visas.

On Tuesday, U.S. District Judge Jeffrey S. White of the Northern District of California ruled that the government’s argument to immediately implement the Labor rule because of high pandemic-related unemployment did not justify the government from forgoing the regulatory procedure that requires a 30-day waiting period between publication of the final rule and its effective date.

“The pandemic’s impact on the economy is the only reason DHS proffered as good cause, and Defendants do not dispute that the failure to provide notice and comment was prejudicial,” White wrote in the ruling.

The ruling stems from a lawsuit filed against the Trump administration by the U.S. Chamber of Commerce, the National Association of Manufacturers and other organizations. The plaintiffs had argued the new visa rules would harm the ability of U.S. businesses to hire H-1B visa holders.