Discrimination within a US immigration application

Discrimination within a US immigration application

Discrimination. A very loaded word. One that is to be respected yet is often used heavily and unrestrainedly. Generally speaking, those who are within or touch upon the immigration world are cautiously aware of its existence and potential for harm, to the recipient as well as to an unintended ‘user’. As such, steps are taken to mitigate its possibility from a government and organisation perspective.

One such example is the PERM program. PERM Labor Certification is a program administered by the Department of Labor. The purpose of the program is to protect US workers from companies replacing them with workers from overseas. In order for a company to sponsor a foreign worker for an employer-sponsored green card, the company must first place specific forms of recruitment for the position and review resumes submitted as a result. If a US worker applies for the position and is qualified, the company must either hire the US worker or place the green card process on hold for the foreign worker they intended to sponsor. One of the attestations companies make when filing a PERM Labor Certification is that it will avoid discrimination against US workers. 

Significant Consequences

To fall afoul of this can lead to significant consequences such as monetary fines and negative publicity as Apple Inc (Apple) discovered to their detriment last year.
Having reached an agreement with the Justice Department to resolve allegations that they illegally discriminated in recruitment practices, Apple is required to pay $6.75 million in civil penalties and establish an $18.25 million back pay fund for eligible victims of the discrimination.
Stemming from the belief that Apple violated anti-discrimination requirements during Apple’s recruitment for positions falling under the PERM program; the scale of monetary penalty is immense and demonstrative of the US government’s desire to prevent such practices.

How then can an organisation protect itself from inadvertently following practices that may be deemed to be discriminatory? With our above example, the allegations were made as a result of the Justice Department perceiving Apple to have engaged in less effective recruitment practices which deterred US workers from applying to positions that Apple wished to fill with PERM beneficiaries. This perception was gained from instances such as Apple not advertising positions they sought to fill through the PERM program on its external job website, whereas standard practice was for other roles to be advertised there, as well as the requirement for applicants to PERM positions to submit their application via mail whereas standard practice for other roles was to submit electronically. 

It was held that these less effective recruitment procedures resulted in fewer applications to PERM positions from applicants with unlimited permission to work; believed to be a clear act of discrimination by the Justice Department.

Apple is certainly not alone. Other large multinational organisations have also encountered similar issues, with Facebook required to pay $4.75 million in civil penalties and establish a $9.5 million backpay fund for eligible discrimination victims from similar allegations in 2021. So far, the Justice Department has targeted major organisations with large immigration programs, perhaps to set an example for other organisations sponsoring foreign workers. 

The Justice Department Vs. SpaceX

Coming from a different perspective, while still within the immigration-discrimination realm, the Justice Department recently sued SpaceX under the anti-discrimination provisions of the Immigration and Nationality Act. In this case though, the Justice Department said SpaceX discriminated against lawful asylees and refugees. In its complaint, the Justice Department cited a post by Elon Musk on X, formerly known as Twitter, saying that "U.S. law requires at least a green card to be hired at SpaceX, as rockets are advanced weapons technology."

The Justice Department said this practice violates discrimination protections against people in the US with valid work authorization, such as asylees and refugees. However, SpaceX was able to overcome the lawsuit by citing export control laws, wherein certain technologies that can have military application must be screened off from foreign workers. 

Whilst the above provides comprehensible examples, an organisation should review their recruitment practices for all roles, whether the role would be part of the PERM program or not, to ensure that all processes, criteria and assessment do not discriminate. In doing so, it is vital to establish whether all practices give equal weight and opportunity to all applicants, irrespective of immigration status, for example race, religion, sexual orientation or gender identity. 

Furthermore, when formatting your PERM program, it is recommended that advice is sought from an independent source who can verify your practices objectively, and even cynically, to ensure there can be no perception of discrimination. While it is possible that the SpaceX outcome might impact the Justice Department’s recent spate of discrimination challenges against companies’ immigration practices, conducting regular reviews is a recommended best practice. Government enforcement tends to come in waves, so implementing standard compliance reviews will help to shield companies from liability. 

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