Experts call the DOJ's lawsuit against Facebook 'troubling' and 'unfair' because the company complied with federal guidelines for recruiting foreign workers

Experts call the DOJ's lawsuit against Facebook 'troubling' and 'unfair' because the company complied with federal guidelines for recruiting foreign workers
President Donald Trump on December 3, 2020, in Washington, DC.BRENDAN SMIALOWSKI/AFP via Getty Images
  • The Department of Justice in a new lawsuit has accused Facebook of discriminating against Americans by giving high-paying jobs to foreign workers.
  • But experts told Business Insider that the lawsuit is "unfair" and "troubling" because Facebook complied completely with recruitment requirements set by the Department of Labor in what is known as the PERM process.
  • The Trump administration has cracked down on immigration, including banning H-1B holders from entering the US and proposing restrictions on H-1B visas. The tech world relies heavily on H-1B programs since it recruits highly-skilled talent from around the globe.
  • "Clearly, this lawsuit is part of the administration's ongoing efforts to reduce US companies' use of H-1B and other immigration programs," one immigration attorney said, referring to the administration's practices.

The Department of Justice filed a lawsuit against Facebook Thursday accusing the tech giant of favoring foreign workers over Americans.

The lawsuit alleges that Facebook did not properly advertise over 2,600 high-paying jobs to US residents, instead opting to give them to temporary visa holders, known as H-1B workers.

But experts told Business Insider that Facebook completely met the recruitment requirements set by the US Department of Labor through a process known as the Permanent Labor Certification, or PERM.

The lawsuit, according to Kim Clarke, an immigration attorney and partner at Varnum LLP, is saying that Facebook "should have done more than what the Department of Labor regulations required." She said that's an "unfair approach."

Through the PERM process, which was established in the 1990s, companies have to prove that they're not displacing US workers. Companies like Facebook must prove they aren't overlooking Americans by posting on workforce agency websites for 30 days, advertising in newspapers for at least two Sundays, and taking other steps that show they've advertised the position.


The DOJ's lawsuit specifically targets a part of the recruitment process in which companies decide to convert H-1B holders to permanent US residents, Clarke told Business Insider. The lawsuit alleges that Facebook's recruitment process wasn't robust enough and didn't include enough advertising targeted toward US residents, even though, Clarke said, it was completely in compliance with regulations.

The DOJ is "trying to compare apples to oranges in their complaint and say the net result is discrimination against American workers," she told Business Insider. "But what they failed to recognize is that the foreign workers were already recruited through that same rigorous recruitment process that invites all American workers to it."

Shannon Shepherd, a lawyer at Immigration Attorneys LLP, said the lawsuit is "troubling" and "disingenuous" because it "seems like the DOJ is admitting or confirming that Facebook did follow the rules with respect to PERM and the recruitment process but is still accusing them of discriminating against US workers."

'The PERM process itself needs to be kind of evolved to fit modern practices'

The complaint alleges that Facebook favors foreign nationals over US workers, which echoes growing animosity toward industry giants hiring foreign nationals in recent years, but Shepherd said in her experience, that's not the case.

"The PERM process is so cumbersome and so much more burdensome than the normal recruitment practices that if they had a US worker that they didn't have to jump through all those hoops for, they would typically just hire that person," Shepherd said.


PERM requires companies to follow two recruitment steps. The first is when companies hire foreign workers under temporary work visas. The second happens when those employers determine it to be a good investment to sponsor those workers to be converted to permanent US residents. The Department of Labor requires a foreign worker's employment to begin within six months of an H-1B application, and foreign workers with H-1B visas are typically employed for three years before companies sponsor their permanent residency applications.

"Clearly, this lawsuit is part of the [Trump] administration's ongoing efforts to reduce US companies' use of H-1B and other immigration programs," said Bill Stock, a partner at the Philadelphia-based Klasko Immigration Law firm and former president of the American Immigration Lawyers Association.

PERM regulations also require companies to consider any US applicant who meets the most basic requirements of the position, what the program refers to as "minimally qualified workers."

But "in the real world, you're not going to stop at the minimally qualified person," Shepherd said. "You're going to want the most qualified person. So this is where the system really doesn't reflect reality."

The lawsuit is ignoring the real problem, which, according to Shepherd, is that "the PERM process itself needs to be kind of evolved to fit modern practices."


The experts Business Insider spoke with also said that the lawsuit relies on a narrative long peddled by anti-immigration groups: It claims that Facebook's recruitment process harms the very temporary visa holders that it is hiring by locking them into employment, a misinterpretation of the rules surrounding companies sponsoring visas and permanent residency.

Visa-holders can leave their company fairly easily if they wanted to, the experts said, especially since there are so many companies who would love to hire employees coming from a notable employer like Facebook.

"It's not that there's a prohibition on moving jobs," Clarke said. "It's just that there's a cost for the new employer to go through the immigration process."

Read more: Trump's shutdown of H-1B visas is a huge hit to the Silicon Valley tech giants that employ thousands of affected workers

Since President Donald Trump took office, his administration has said it would stop foreign workers from taking jobs away from Americans.


It banned H-1B visa-holders from entering the country in June and further proposed restrictions on H-1B visas in October. The tech industry relies heavily on the H-1B process since its workforce includes many immigrant workers. Facebook, Google, Twitter, and others pushed back heavily on Trump's H-1B visa restrictions and said barring overseas workers from American firms would harm the US economy.