A $25 million Department of Justice settlement with Apple Inc. over allegations it discriminated against US citizens in hiring highlights a disconnect between federal agencies on compliance with immigration law, attorneys say.

The settlement is the second enforcement action against a major US employer over findings of bias when sponsoring foreign workers for lawful permanent residency. Companies that help employees secure green cards must fulfill US Labor Department recruiting requirements for the positions affected above and beyond typical hiring practices.

Those mandates—like having to advertise in Sunday print newspapers—were already anachronistic, say immigration attorneys who advise employers on the permanent labor certification program, known as PERM. But the Apple settlement shows the need for better guidance on how to navigate oversight from the Departments of Justice and Labor, they said.

Large employers that may be meeting the letter of the law when it comes to DOL regulations can still find themselves in the crosshairs of Justice Department enforcement actions for recruitment failures when they try to secure lawful permanent residency for foreign workers. The cases underlines not only the need for updating rules for current hiring practices but also for federal agencies to get on the same page with their approach to oversight, attorneys say.

“Employers who wish to sponsor skilled, and badly needed, foreign workers for permanent residency are caught between the conflicting requirements of two federal agencies,” said Cyrus Mehta, managing partner at Cyrus D. Mehta & Partners, PLLC.

Deterring Applications

Companies that want to sponsor workers for lawful permanent residency must navigate the Labor Department’s PERM process, which starts by advertising positions with an agency-approved prevailing wage. After conducting that wage test and securing a labor certification from the DOL, the employer can then submit an immigrant worker petition with US Citizenship and Immigration Services. Post-pandemic delays in the process at the Labor Department raised alarms among employers about retaining needed talent, especially at smaller firms with fewer sponsored employees.

Large tech employers may attract extra scrutiny as they navigate recruitment mandates, in part because they are the heaviest users of the PERM process and the H-1B visa program, in which roughly two-thirds of workers are employed in tech or “computer-related” fields.

The vast majority of workers being sponsored for permanent residency are already employed in the US on an H-1B or other temporary visa status. Even if their employer agrees to sponsor them for permanent residency, many workers face decades long wait times for green cards because of massive backlogs. But making certain progress toward lawful permanent residency allows workers to continuously renew their temporary visa status.

The DOJ alleged that Apple adopted measures that would depress applications from US workers who might otherwise apply for the positions involved. The agency said in its announcement of the settlement, for example, that the company required paper applications instead of online job submissions. It also didn’t advertise PERM positions on its external website—a standard practice for other openings. Those measures resulted in fewer or no submissions from applicants who don’t have temporary work authorization, DOJ said.

Attorneys say there may be valid reasons for Apple and other companies to adopt such practices. For one, DOL requires that employers keep precise track of who applies for PERM positions. In this case, the settlement appears to suggest that employers may be in compliance with Department of Labor rules, but still face enforcement actions from the Justice Department because that compliance “wasn’t in the spirit of the process,” said Bob Webber, an immigration attorney at the Webber Law Firm.

“It’s like DOL wants you to comply with the trees, but DOJ says you missed the forest,” he said.

Tech Scrutiny

The Justice Department settled similar allegations over hiring bias with Facebook in 2021 after an investigation found that the tech giant discouraged US workers from applying for PERM positions. The company agreed to pay $14.3 million, but insisted it complied with recruiting standards. A separate DOL investigation found violations of PERM regulatory requirements by the company, which later rebranded as Meta Platforms Inc.

Employers should evaluate their permanent labor certification programs under both the DOL regulations governing PERM and the emerging enforcement trend at the Justice Department, said Bo Cooper, a partner at Fragomen, Del Rey, Bernsen & Loewy LLP.

A DOJ spokesperson said employers aren’t allowed to deter workers from applying for jobs based on their citizenship status or immigration status.

“The department has long investigated and taken enforcement action against employers that discriminate in hiring and recruitment based on citizenship status, including employers that discriminate due to a preference for temporary visa works,” the spokesperson said in a statement.

Although it doesn’t administer the PERM program, the DOJ Civil Rights Division’s Immigrant and Employee Rights section has long maintained that the process is subject to its jurisdiction. That position is faulty because there’s no hiring mandate as part of PERM regulations, said Kathleen Walker, an immigration attorney at Dickinson Wright PLLC.

Recruitment mandates were already badly in need of updates to match the current era of hiring, but the latest settlement illustrates the need for federal agencies to speak with one voice for employers “to have any chance to comply,” she said.

“DOJ should not be allowed to impose its judgment on the process unmoored to the labor regulations in existence, no matter how outdated and unrealistic,” Myers said.

The Department of Labor didn’t respond to a request for comment.

Mehta said it’s hard to know how much of an enforcement focus the PERM process will receive moving forward beyond the two tech giants. But a recent court victory for Elon Musk’s SpaceX may open a pathway for other companies to challenge DOJ investigations, he said. The private rocket company won a district court order halting Justice Department administrative proceedings into alleged hiring discrimination at the company against non-US citizens after SpaceX argued the case was unconstitutional.

“One wonders why Apple and Facebook copped a settlement rather than contesting the lawsuit like SpaceX did,” Mehta said.

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