Dive Brief:

• The U.S. Department of Justice (DOJ) sued Facebook Dec. 3 alleging the company used a recruiting process "intentionally designed to deter U.S. workers from applying" for certain positions that the company "reserved" for temporary visa holders seeking a permanent labor certification via the U.S. Department of Labor's PERM program.
• Employers may use PERM to offer permanent jobs to temporary visa holders, but federal law requires that the Labor Department first certify that there are not sufficient U.S. workers able, willing, qualified and available to take a given job. DOJ's suit alleged that, between Jan. 2018 and Sept. 2019, Facebook "diverged from its normal recruiting protocols" by not advertising on its external careers website — nor accepting online applications for — permanent positions offered to visa holders who asked Facebook for such a position.
• "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," a Facebook spokesperson told HR Dive in an email.

Dive Insight:

The agency's announcement is the latest in a series of actions by the Trump administration in relation to the employment of temporary visa holders in the U.S.

Federal law requires employers seeking to utilize the PERM program to recruit U.S. workers for relevant job openings by using three mandatory recruitment methods, DOJ said in the suit. Those methods include posting the opening(s) to a State Workforce Agency's job board, posting an internal notice at the place of employment and advertising the opening(s) in a major newspaper twice. Employers must also utilize at least three additional methods chosen from a list.

During the time period specified in the complaint, Facebook did advertise all PERM-related jobs using the three mandatory methods and "typically satisfied" requirements to use three additional methods, DOJ said. But the company required candidates for such positions to apply by mail, in contrast to what DOJ called "standard operating procedure" when hiring for non-PERM vacancies. For those roles, Facebook typically advertised them on its website, and it did not require applicants to apply by mail, per the suit.

DOJ cited the example of an art director position for which Facebook filed a PERM application in 2018. Advertisements for the position required applicants to apply by mail, and Facebook said in the application that it received zero U.S. worker applications for the role. But during the same year, Facebook advertised 22 non-PERM art director positions requiring higher minimum qualifications than the position mentioned in the application and the company received at least 2,612 applicants for such positions, DOJ said.

"This lawsuit follows a nearly two-year investigation into Facebook's practices and a 'reasonable cause' determination by the Justice Department's Civil Rights Division," Assistant Attorney General Eric S. Dreiband of the Civil Rights Division said in a DOJ statement. "Our message to all employers — including those in the technology sector — is clear: you cannot illegally prefer to recruit, consider, or hire temporary visa holders over U.S. workers."

The Trump administration has particularly ramped up in the past year reform of the H-1B visa program, which allows U.S. employers to hire certain highly skilled foreign nationals. In October, the U.S. Department of Homeland Security issued an interim final rule mandating higher minimum pay for H-1B workers and narrowing the scope of degrees eligible for the program, among other changes. A number of universities and business groups, including the U.S. Chamber of Commerce, later sued to challenge the updated regs. A federal district court struck down the rule earlier this month on procedural grounds.

Another proposed rule issued by DHS in November would replace the existing lottery system that dictates the allotment of H-1B visas with a "wage level ranking" system, prioritizing foreign workers who receive the highest wage offers from employers.