US Justice Department lets ruling stand on job ads targeting H-1B visa holders

The US Justice Department has allowed a ruling on job advertisements targeting H-1B visa holders to stand, holding that discriminatory advertising alone is not a separate legal violation. The decision has implications for employers, US workers and Indian professionals seeking US jobs.

Washington: The US Justice Department has allowed a ruling to stand that job advertisements aimed only at H-1B visa holders do not, by themselves, amount to illegal discrimination against American workers, a decision that bears directly on a visa programme dominated by Indian professionals.

Attorney General Todd Blanche let lapse the 60-day window to review an August 12 decision by an administrative law judge in the department’s Office of the Chief Administrative Hearing Officer (OCAHO), despite a request from 13 House Republicans to take up the case, according to Breitbart News.

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The judge dismissed a complaint by US Tech Workers against Boston Consulting Group over its participation in “P33 Chicago H-1B Connect”, a Chicago initiative that served as a jobs board for H-1B visa holders.

The ruling held that “discriminatory advertising does not represent a discrete cause of action under the INA”, or the Immigration and Nationality Act. Such evidence, it said, is limited to “part of a case alleging nonselection, recruitment, or termination, rather than as independently actionable violations of the INA.”

“The Department thoroughly reviewed the ALJ’s decision and stakeholder concerns, and ultimately determined that the underlying decision was consistent with OCAHO precedent,” the Justice Department said in a statement, according to Breitbart News.

“The Department aggressively targets employers who discriminate against American workers through unlawful hiring practices,” the statement said.

In their October 9 letter to Blanche, the lawmakers, led by Representatives Paul Gosar and Chip Roy, said the decision “suggests that section 274B does not provide a cause of action for discriminatory advertising”.

“If employers can expressly target foreign workers while discouraging Americans from applying, those protections are substantially weakened,” they wrote.

John Miano, a lawyer for US Tech Workers, told Breitbart News that “the whole 25 years of prosecuting companies” over such practices “is set back 25 years by this.”

The report came on the day the department announced that online grocery company Instacart would pay $5 million to settle charges that it discriminated against American workers while recruiting for green card-linked jobs under the PERM programme. Last week, data company Cloudera agreed to a two-year bar from the PERM programme in a similar case.

Indians make up the largest share of H-1B visa holders, accounting for more than 70 per cent of approved petitions in recent years, and most employment-based green card applicants from India move through the PERM route.

The ruling means job boards and ads targeting H-1B workers, such as the Chicago initiative, face a higher legal bar, as US workers must show they were actually harmed in hiring or recruitment.