The Department of Justice (DOJ), Office of Special Counsel, announced in a press release that it has reached a settlement with International Business Machines Corporation (IBM) resolving allegations that the company engaged in citizenship status discrimination by preferring temporary visa holders over US workers during its recruitment process. This settlement serves as a warning to employers that unlawfully discriminate against US workers and work-authorized individuals based on their citizenship status.
According to the press release, the settlement resolved claims that IBM violated the antidiscrimination provision of the Immigration and Nationality Act (INA) when "it placed online job postings for application and software developers that contained citizenship status preferences for F-1 and H-1B temporary visa holders." H-1B visas are issued to foreign workers who will work in a specialty occupation in the US. A specialty occupation position is defined as a job that requires at least a bachelor's degree (or its equivalent) in the specialty field of study. An F-1 visa allows individuals to enter the US as a full-time student at an accredited school including colleges, universities, seminaries or high schools.
The INA prohibits employers from discriminating on the basis of citizenship status when hiring or recruiting for a fee unless required by law, regulation, executive order or federal, state or local government contract. See 8 U.S.C. §1324b(a)(2)(C). To that end, employers cannot expressly or impliedly prefer temporary visa holders over US workers for an employment opportunity in the US.
The settlement requires IBM to do the following:
Pay $44,000 in civil penalties to the US government;
Revise its hiring and recruiting procedures and train its HR personnel to ensure compliance with the INA; and
Comply with certain reporting requirements for a period of two years.
This settlement was reached less than two months after the DOJ announced the filing of a lawsuit against Autobuses Ejecutivos LLC, d/b/a Omnibus Express, for allegedly discriminating against US citizens and lawful permanent residents when it preferred to hire temporary non-immigrant visa holders as bus drivers.