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  • Employers Seeking Temporary Foreign Labor Could Get Bias Charges (1)

    Employers Group | 08/07/2018 | News

    By Laura D. Francis

    Employers that seek labor certification to hire temporary foreign workers could find themselves with a charge of discriminating against U.S. workers.

    The Justice and Labor departments have entered into a memorandum of understanding that expands information sharing between the two agencies, they announced July 31. Under the agreement, the DOL will refer cases of potential discrimination to the DOJ. The DOJ, in turn, will refer potential cases of noncompliance with visa program requirements to the DOL.

    A similar agreement was reached with the State Department in October.

    “Employers should hire workers based on their skills, experience, and authorization to work; not based on discriminatory preferences that violate the law,” John Gore, acting assistant attorney general for the DOJ’s Civil Rights Division, said in a statement.

    The agreement brings an extra layer of scrutiny to employers, who already complain they’re having a difficult time accessing the labor they need. Employers already are subject to potential bias charges from the DOJ—the memorandum increases the opportunities for the agency to open an investigation.

    Most Employers Legit, Attorney Says

    “If employers are violating the law, they need to be found and punished,” Sarah K. Peterson of SPS Immigration in Minneapolis, told Bloomberg Law July 31. But “most employers really want to hire U.S. workers” and only go through the lengthy and costly immigration process because they have to, she said.

    An agreement focused on rooting out bias against U.S. workers “seems to suggest the opposite of that,” she said.

    “These are viable programs that have inherent protections in place for U.S. workers already,” said Peterson, who heads the American Immigration Lawyers Association’s DOL liaison committee. The information in labor certification applications is already public, so “I don’t know what more” the memorandum can do, she said.

    The DOJ’s Immigrant and Employee Rights section in early 2017 adopted a new initiative aimed at prosecuting employers that prefer to hire temporary foreign workers over U.S. workers. The initiative has netted more than $285,000 in back pay to affected workers, the DOJ said.

    Employers are required to test the labor market before hiring foreign workers on H-2A visas for the agriculture industry or H-2B visas for seasonal, nonagricultural work. They must get approval from the DOL’s Office of Foreign Labor Certification before seeking the visas from the Homeland Security Department.

    To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

    To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com