Feds say Facebook broke US law offering permanent jobs to H-1B workers

Facebook CEO Mark Zuckerberg.
Enlarge / Facebook CEO Mark Zuckerberg.

The United States Department of Justice sued Facebook on Thursday arguing that the social media giant discriminated against US workers by giving preference to Facebook workers on H-1B visas who wanted to transition to permanent jobs at the company.

The H-1B visa program lets foreign workers work at a US company for three years. It can be renewed once. After that, an employer can ask for permission to offer the immigrant a permanent job under the Department of Labor’s PERM certification program. But the employer is supposed to first advertise the job to see if any Americans are available. Only if no qualified Americans apply can the job go to the immigrant.

In its lawsuit, the Justice Department argues that Facebook’s hiring practices made a mockery of these requirements. Most Facebook jobs are advertised online, and job seekers can apply online. In contrast, Facebook overwhelmingly placed its legally mandated ads for PERM jobs in print publications. Candidates were required to submit their applications by mail.

These jobs had an average salary of more than $156,000. Yet out of 1,128 jobs posted between July 2018 and April 2019, 81 percent didn’t receive a single applicant, while another 18 percent received just one applicant.

“If a US worker applied to a PERM-related position and Facebook determined that the US worker was qualified, but there was no non-PERM-related vacancy available for the US worker, Facebook’s standard operating procedure was to decline to hire the US worker for the PERM-related position and to temporarily abandon or suspend the PERM process,” the Justice Department wrote in its lawsuit.

“Another more qualified candidate”

For example, Facebook in September 2018 sought to obtain a permanent position for an art director who had been working for Facebook on an H-1B visa. Facebook claimed it had advertised the job for a month without any interest from US workers. Yet the DOJ notes that, earlier in 2018, Facebook had advertised 22 openings for other art director jobs—many with more demanding qualifications. The company received more than 2,600 applications for those jobs.

“Facebook did not hire at least 288 applicants for these Art Director Positions because, though they were not unqualified, there was another more qualified candidate,” the DOJ wrote.

The government argues that Facebook was legally required to give a job to one of the 288 American applicants instead of hiring the H-1B worker.

Overall, the feds say that between 2018 and 2019 there were more than 4,000 American workers who applied for jobs at Facebook and didn’t get them—even though they appeared to be qualified for one of 2,600 jobs Facebook wanted to offer to H-1B visa holders over the same period.

The government argues that Facebook’s hiring practices constitute illegal discrimination against US workers. It is asking the courts to order Facebook to overhaul its hiring practices, pay a fine, and provide back pay to workers who were illegally denied jobs—a potentially hefty sum given the number of job seekers involved.

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