Facebook will pay up to $14.25 million to the federal government to settle claims that the social media giant unlawfully favored temporary foreign employees over U.S. workers, making it the largest financial recovery ever under the Immigration and Nationality Act's anti-discrimination provision.
The Department of Justice (DOJ) investigation found that when a Facebook employee with a temporary immigration status requested to become a permanent employee through the permanent labor certification (PERM) process in connection with an open job, Facebook departed from its standard recruiting and hiring processes and instead allegedly actively deterred U.S. workers from applying for those roles. It's a practice that critics of the H-1B and PERM programs say is common among large users of those programs.
A Facebook spokesperson responded that "While we strongly believe we met the federal government's standards in our PERM practices, we've reached agreements to end the ongoing litigation and move forward with our PERM program, which is an important part of our overall immigration program."
We've rounded up resources and articles from SHRM Online and other outlets to provide context.
Settlement Terms
The agreement with the DOJ included payments of $4.75 million to the government and as much as $9.5 million to "eligible victims of Facebook's alleged discrimination."
Under the settlement agreement, Facebook will have to advertise job opportunities for PERM-identified positions more widely and make it easier for U.S. workers to apply. A separate settlement with the U.S. Department of Labor (DOL) requires the company to do more to recruit U.S. workers and to receive ongoing audits and greater scrutiny to ensure its compliance with the PERM program for the next three years. The separate settlement with the DOL stemmed from a 2021 audit of the company's pending PERM applications, which it opened after the DOJ filed its lawsuit.
Separate Processes for US, Foreign Workers
The complaint filed against Facebook alleged that it created a separate hiring process for certain temporary immigration status holders from at least Jan. 1, 2018, until at least Sept. 18, 2019.
The DOJ said the investigation is focused on that period of time outlined in the complaint, but the evidence suggested the alleged behavior went back further and continued beyond that date. Facebook allegedly required applications to be submitted by mail only, didn't advertise the open positions on their careers site and ultimately hired only foreign guestworkers already sponsored by the company for those roles.
(The Hill)
Trump Sought Reforms to H-1B Visa, PERM Programs
The DOJ investigation and lawsuit, begun during the Trump administration, reflect the previous president's crack down on alleged displacement of U.S. workers via the H-1B visa and PERM programs.
Biden Administration Plans Big Changes to H-1B Program
The Biden administration's first published regulatory agenda—announcing agency rulemaking priorities for the remainder of the year—reveals substantive changes to the H-1B visa program.
U.S. Citizenship and Immigration Services (USCIS) is planning to amend the H-1B program by redefining the employer/employee relationship, clarifying when USCIS must be notified about a change in H-1B employment and establishing rules for employer site visits, while the DOL is going ahead with a Trump-era proposal to increase prevailing wages for the H-1B and PERM (employment-based green card visa) programs.
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