DOJ Slaps Facebook’s Wrist for Subverting U.S. Tech Workers

The Department of Justice caught social media titan Facebook blatantly reserving jobs for, and then hiring, foreign-born H-1B visa workers. In December 2020, the Immigrant and Employee Rights Section (IER) in DOJ’s Civil Rights Division filed a complaint against Facebook with the Office of the Chief Administrative Hearing Officer. DOJ alleged that Facebook refused to recruit and therefore could not hire skilled U.S. workers. The investigation began in 2017 when then-President Donald Trump’s “Buy American and Hire American” Executive Order mandating that American workers’ protections be prioritized was in effect.

In its complaint, IER asserts that for positions it reserved for those temporary visa holders, no advertisement appeared on Facebook’s careers website, no online applications were accepted, and candidates had to physically submit snail mail applications – not email – to the company, an unusual procedure for a major corporation that rose to fame and fortune through the Internet.

The complaint further contends: “Not surprisingly, Facebook often gets zero applications for these advertised positions.” The DOJ press release states: “Facebook received zero or one U.S. worker applicants for 99.7 percent of its PERM [permanent employee] positions.” The company purportedly received between two and four applicants for the remaining .3 percent of PERM positions, but had no U.S. worker applicants for them 81.5 percent of the time.

But, in what the Center for Immigration Studies’ Andrew Arthur, a former Counsel on the House Judiciary Committee and a retired immigration judge, identified as “the crux” of the DOJ’s case, IER alleged that “even when U.S. workers do apply, Facebook will not consider them for the advertised positions,” but rather the company “fills these positions exclusively with temporary visa holders.” The DOJ concluded: “Simply put, Facebook reserves these positions for temporary visa holders.”

The H-1B visa process does not require employers to prove that they could not find qualified American workers. But the employment-based Green Card process (PERM) does. So employers hire immigration attorneys who find deceptive ways to disqualify Americans from applying for those jobs. This is what the DOJ found Facebook guilty of doing.

Facebook’s deliberate subversion of the H-1B’s original intent – to complement the domestic labor force when no other American employee could be found – denied qualified U.S. tech workers coveted white-collar jobs. Facebook deprived an estimated 2,600 U.S. workers a fair shot at professional jobs that, DOJ said in its filing, averaged an annual salary of $156,000.

Instead, Facebook hired workers who obtained H-1Bs and other overseas visas in 2018 and 2019. Despite Facebook’s egregious and illegal offense, a common hiring abuse among tech companies and other industry giants, it settled the DOJ lawsuit for a token slap-on-the-wrist $14 million. Under the DOJ settlement, Facebook will pay a civil penalty of $4.75 million and up to $9.5 million to eligible discrimination victims. The DOJ’s Civil Rights Division and Facebook will identify the compensation-eligible victims. As part of a separate DOL agreement, Facebook will train its employees on the Immigration and Naturalization Act’s anti-discrimination requirements.

Kristen Clarke, the DOJ’s Civil Rights Division’s head, called the settlement historic, and said that it’s the “largest fine and monetary award that the Civil Rights Division ever recovered in the 35-year history of the INA’s [Immigration and Nationality Act] anti-discrimination provision.” Clarke added: “Companies cannot set aside certain positions for temporary visa holders, because of their citizenship or immigration status.” She concluded: “Facebook is not above the law.”

Clarke’s claims aside, to Facebook, whose 2020 earnings were $21.2 billion and whose available cash, cash equivalents and marketable securities were $61.95 billion as of December 31, 2020, $14 million is pocket change, a sum likely dismissed by the company’s chief executives as the cost of doing business.

Although the DOJ exposed Facebook’s bag of dirty, anti-American worker tricks, the H-1B program will continue without meaningful reform, at least during the current administration. Zuckerberg, his lobbying arm and other tech giants like Google, Twitter and Amazon are huge donors to the Democratic Party. In politics, nothing is truer than the old phrase, “Money talks.”