By Michelle Hackman, Sadie Gurman and Deepa Seetharaman
The Trump administration has sued Facebook Inc., accusing the
social-media company of illegally reserving high-paying jobs for
immigrant workers it was sponsoring for permanent residence, rather
than searching adequately for available U.S. workers who could fill
the positions.
The lawsuit reflects a continuing Trump administration push to
crack down on alleged displacement of American workers.
In a 17-page complaint filed Thursday, the Justice Department's
civil-rights division said Facebook inadequately advertised at
least 2,600 positions between 2018 and 2019 that were filled by
foreign professionals on H-1B visas when the company was looking to
sponsor them for permanent residency permits, known as green
cards.
Companies sponsoring workers for employment-based green cards
are required to show as part of the application process that they
couldn't find any qualified American workers to fill the job.
A Facebook spokesman said the company "has been cooperating with
the DOJ in its review of this issue and while we dispute the
allegations in the complaint, we cannot comment further on pending
litigation."
The lawsuit also reflects long-running tensions between Silicon
Valley and the Trump administration over the use of foreign workers
in key technology roles. It also adds to a broader set of actions
by the administration against the tech industry including ongoing
antitrust investigations into Facebook and other companies and
scrutiny of the social-media platforms' liability shield known as
Section 230.
The Trump administration has viewed the H-1B visa program for
foreign professionals -- the primary pathway international
graduates of U.S. colleges remain in the country -- with
antagonism, believing that employers are displacing American
workers with foreign staffers who demand smaller salaries.
It rejected 21% of new H-1B visa applicants in 2019, compared
with 6% in 2015, according to an analysis of government data by the
National Foundation for American Policy, a nonpartisan Washington
think tank.
The administration banned the visas outright in June due to the
coronavirus pandemic and imposed new rules that would have
significantly raised the salaries that companies are required to
pay their H-1B visa workers. Both moves were overturned by federal
courts.
Silicon Valley companies and trade groups have succeeded at
striking down recent immigration policies in the courts, including
restrictions on international students and an Obama administration
program called Deferred Action for Childhood Arrivals, or DACA,
that protects immigrants living in the U.S. since childhood without
legal permission.
"This is a new tactic under the guise of protecting American
workers," said Jesse Bless, a former Justice Department official
who is now director of federal litigation at the American
Immigration Lawyers Association. Normally the government would seek
to work or settle with a company before suing them, he said. "It
tells me that, since they took this route, they are trying to set
an example."
Justice Department officials said their investigation kicked off
when Facebook filed an application with the Labor Department to
hire a foreign worker as an art director, a role that requires a
bachelor's degree and two years of experience. The officials said
Facebook should have been able to find an American to fill this
type of job. Other positions included a number of software jobs as
well as nontechnical positions.
U.S. immigration laws set strict requirements for companies
looking to apply for green cards on behalf of their employees. They
must advertise the job with a state workforce agency as well as in
the Sunday edition of a newspaper, among several other
requirements. Companies aren't specifically required to post a job
opening on their websites.
If a qualified American worker comes forward, the company is
required to interview that person, and the green-card application
process can't move forward.
The lawsuit alleged that, though Facebook followed the
advertising and recruiting requirements for these jobs, it didn't
publicize the openings as extensively as it normally would. For
example, Facebook didn't advertise the positions on its website and
required candidates to mail in their applications rather than
accepting them online, the suit said. As a result, the company
received no more than one application from a U.S. worker in nearly
all the jobs at issue, rather than the hundreds who normally apply
for open Facebook postings, the complaint said. When U.S. workers
did apply, the suit said Facebook hired them into different jobs,
reserving the open position for the H-1B worker.
"Simply put, Facebook reserves these positions for temporary
visa holders," the suit alleged.
The Justice Department has investigated a number of companies as
part of a broader initiative that began in 2017 to target those
that disfavor U.S. workers. But most companies settle before the
Justice Department can sue, making Thursday's action especially
significant, legal analysts said. Officials described it as the
largest case brought under the initiative and the first against a
major technology company.
Tech companies like Facebook rely on H-1B visas to plug gaps in
their technical workforce, which they say is essential to building
the software that powers products like the Facebook news feed. Tech
executives have said there aren't enough American students
graduating with science and engineering degrees to meet their
demand, a problem they say is only worsening as products grow more
complex and reliant on advanced technology like artificial
intelligence.
The U.S. unemployment rate for people in computer professions
was 3% in October, according to an analysis of Bureau of Labor
Statistics data by the National Foundation for American Policy. The
national unemployment rate that month was 6.9%.
The H-1B program is the "lifeblood of Silicon Valley" where
competition for engineers is fierce, said Vivek Wadhwa, a
distinguished fellow at Harvard Law School's Labor and Worklife
Program who researches how jobs are being changed by
automation.
Mr. Wadhwa added that companies seek to hire H-1B visa holders
who have done the job because they have a proven track record of
being able to handle the required work. "The companies want you
because you've survived and you've proven yourself," he said. "It's
not a matter of a fake credential."
Write to Michelle Hackman at Michelle.Hackman@wsj.com, Sadie
Gurman at sadie.gurman@wsj.com and Deepa Seetharaman at
Deepa.Seetharaman@wsj.com
(END) Dow Jones Newswires
December 03, 2020 18:56 ET (23:56 GMT)
Copyright (c) 2020 Dow Jones & Company, Inc.
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