State & Justice Pledge to Root Out Abuse of Work Visas

WASHINGTON (CN) — The Departments of Justice and State this week announced a program they said will protect U.S. workers from being discriminated against by companies that hire foreign workers.

The memorandum of understanding will have the Department of Justice’s Civil Rights Division and State’s Bureau of Consular Affairs share information to try to identify employers that use fraudulent work visas.

Kathleen Campbell Walker, an immigration attorney with Dickinson Wright’s El Paso office, said the agreement will allow the Department of Justice to share findings of employer discrimination or unfair use of visa-verification practices with the Department of State, which could, in turn, affect the worker-visa applications of those employers.

Likewise, the Department of State can investigate companies’ job offers and compliance with representations of duties, location and salary made to a consular officer. If it finds misrepresentations, State can share that information Justice, for review and enforcement.

The Civil Rights Division’s Immigrant and Employee Rights Section (IER) enforces the anti-discrimination provision of the Immigration and Nationality Act, which prohibits, among other things, citizenship and national origin discrimination in hiring, firing or recruiting.

In February this year the IER announced a Protecting U.S. Workers Initiative to investigate and bring enforcement actions against companies that discriminate against U.S. workers. It filed its first lawsuit last week against a Loveland, Colorado, company.

“This MOU reflects the focus of the administration on the review of current immigration laws from the perspective of protecting U.S. workers and the economic interests of the U.S. and analyzing the functionality of the current immigration system and laws,” Walker said in an email.

“To date, the impact of the Hire American E.O. is evidenced by the consular posts by denials of a variety of nonimmigrant visa applications on the basis of concerns that a U.S. worker is available," Walker added. " Members of the American Immigration Lawyers Association (AILA) are providing examples of denials of E visa renewals, L-1B specialized knowledge visas, as well as B-1 visas using this perception by the consular officer of the potential displacement of U.S. workers."

Walker said it is uncertain whether U.S. workers are being displaced by foreign workers.

“The time, cost, complexity and bureaucracy of our legal immigration system is a total turnoff to most employers," she said. "Employers typically only want to enter the immigration quagmire when they have no choice. It may be that the employer needs someone with particular expertise or training abroad to advance their company, or they are just not able to find qualified workers in their area.

“That is not to say that the immigration system has not been used in accordance with the law by some," Walker continued. "The system is subject to fraud and abuse just as other laws are, but the use of foreign workers is not a first resort in the vast majority of employment decisions. The employment-based permanent residence process requires a test of the labor market for most positions. The same standard does not apply to every nonimmigrant visa category for work authorization."

General John M. Gore, acting assistant attorney of the Civil Rights Division, said, “Employers that discriminate against qualified U.S. workers by favoring foreign visa workers will be held accountable.”

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