Seyfarth Shaw LLP are most popular:


within Consumer Protection, Compliance, Government and Public Sector topic(s)
with readers working within the Banking & Credit, Business & Consumer Services and Construction & Engineering industries

This alert was first published as an update on November 24.

Employers that include foreign talent as part of their
workforces, particularly programs like the H-1B non-immigrant visa
program, should pay close attention to recent enforcement
information provided by the Equal Employment Opportunity Commission
(EEOC) and the Department of Justice’s Civil Rights Division
Immigrant and Employee Rights (IER) Section. Leadership at both
agencies have made clear that practices disadvantaging U.S. workers
in favor of nonimmigrant visa holders violate federal law,
including Title VII of the Civil Rights Act of 1964, and the
current administration is prioritizing these cases.

From the outset of her tenure leading the EEOC, Chair Andrea
Lucas has been vocal that the Agency would prioritize protecting
American workers from anti-American bias.1Some
enforcement activities were constrained by the absence of a quorum
of Commissioners. Nonetheless, the EEOC did file some complaints
aligned with this priority. For example, the EEOC obtained a $1.4
million settlement of a suit alleging that an employer provided
non-Japanese employees, including multiple former employees of
American national origin, with less favorable wages, benefits, and
terms and conditions of employment compared to employees from Japan
who held equal or lesser positions.2In another case, the
EEOC asserted claims of discrimination on behalf of Black, American
workers, with allegations that the employer gave preference in
assignments and pay to non-Black, non-American workers authorized
to work under H-2A visas.3

In the latest advancement of this priority, the EEOC published
technical assistance in the form of a fact sheet titled “Discrimination Against American Workers Is Against
the Law.”4It also updated itsnational origin discrimination landing
page5to consolidate key resources for employers and
workers. Through these resources, the EEOC underscores that Title
VII protects all employees, regardless of their national origin
status, including American workers, and that discrimination occurs
when employers favor foreign workers or those with particular visa
statuses over qualified U.S. applicants.

The fact sheet provides concrete examples of unlawful conduct.
High-risk areas include:


Discriminatory job advertisements. Examples include job
postings stating “H-1B preferred” or “H-1B
only.”

Disparate treatment in hiring, firing, job assignments,
compensation, training, or promotion. Examples include terminating
American workers on the bench between assignments at a
significantly higher rate than visa holders, or making the
application process more onerous for U.S. workers than visa
holders.

Harassment. Examples include subjecting an employee to
unwelcome remarks or conduct based on national origin.

Retaliation. Examples include treating an individual
differently on account of their objections or opposition to
national origin discrimination at work.

The EEOC also warns that employers cannot defend a decision to
hire foreign workers over American workers by relying on common
business justifications, calling out in particular client
preferences, cost considerations, or assumptions about the work
ethic of certain national origin groups.

This EEOC priority aligns with DOJ IER activity, which has seen
an uptick in charges alleging that companies “reserved”
certain jobs for temporary visa holders or erected barriers that
discouraged U.S. workers from applying. These charges are often
worker-initiated, but IER must investigate all completed charges.
Recent settlements have included civil penalties, policy overhauls,
and mandatory training for employers whose job advertisements or
recruiting processes unlawfully preferred H-1B workers or imposed
more burdensome application steps on U.S. applicants. Even with a
limited number of attorneys, IER enforcement remains active and
accelerating.

The Department of Labor has also ramped up its scrutiny of H-1B
sponsorship practices through its new initiative,Project
Firewall. Under this effort, the Wage and Hour Division is
empowered to initiate Secretary-certified investigations into
employers suspected of wage violations, improper non-productive
“benching,” or other practices that may disadvantage U.S.
workers in favor of H-1B visa holders. As DOL explained when
announcing the initiative,Project Firewallis intended
“to safeguard the rights, wages, and job opportunities of
American workers by ensuring employers prioritize qualified
Americans when hiring and holding employers accountable if they
abuse the H-1B visa process.”

What Employers Should Do Now

Employers should review both their sponsorship practices and
broader hiring operations to ensure that they are free from
anti-American bias. Key steps include:

1. Reassess Immigration and Sponsorship
Programs


Evaluate H-1B and other visa-based programs with an eye toward
the rapidly changing regulatory and enforcement environment,
including new wage-related rules and recent executive actions.
Ensure these programs are administered in ways that do not
disadvantage U.S. workers while preserving lawful pathways to
recruit and retain the highly skilled global talent essential to
U.S. competitiveness. Clear documentation and consistency are
critical as expectations continue to rise.

For PERM, review how labor-market testing steps are carried out
and assess whether application procedures are applied as
consistently as practical across all candidates. Employers should
be aware that the PERM process is a highly technical,
regulation-driven framework that does not always align cleanly with
modern recruiting practices. IER has signaled it will continue
scrutinizing distinctions employers draw between PERM workflows and
broader recruitment operations. Because these issues can create
tension between DOL requirements and anti-discrimination
obligations, employers should evaluate their approach in
consultation with experienced counsel.

Be mindful of the broader misalignment between DOJ enforcement
priorities and DOL’s PERM rules. Although many stakeholders
have noted that the PERM regulations are decades old and would
benefit from modernization, substantial reform is unlikely in the
near term. This regulatory mismatch also contributes to an
inconsistency in employer practices. Employers may determine
whether, and to what extent, to adjust their practices, but should
do so with a clear understanding of the associated compliance risks
in the current environment.

2. Audit Recruiting and Vendor Practices


Review recruiting strategies, staffing agency relationships,
and vendor agreements for language that could imply a visa or
citizenship preference.

Scrutinize job postings for any terminology suggesting
sponsorship preference.

3. Strengthen Title VII Compliance


Ensure HR, recruiting, and talent acquisition teams receive
regular training on national origin nondiscrimination
obligations.

Document objective hiring criteria and maintain robust records
demonstrating fair, consistent, and lawful decision-making.

Be alert for EEOC charges that include allegations of national
origin discrimination, and particularly allegations of
discrimination against those of American national origin, as such
charges may be prioritized for focused investigation.

As EEOC, DOJ, and DOL sharpen their focus on anti-American bias
and sponsorship-related discrimination, employers should act now to
ensure their processes are free from any such bias. Proactive
compliance, paired with clear documentation and consistent
processes is essential to mitigating risk as enforcement
escalates.

Need support reviewing your immigration practices or assessing
EEOC charge risks? OurImmigration Compliance and EnforcementandComplex Discrimination Litigationteams are
here to help.

For more information, contact Dawn Lurie. The Seyfarth
Immigration Compliance & Investigations specialty group
–recognized as national leaders in the field – is
trusted by top Fortune 100 companies as well as small businesses
across the country for strategic, practical advice. The group
offers comprehensive guidance on Form I-9 and E-Verify compliance,
ICE inspections, and worksite enforcement actions, internal
immigration assessments, I-9 audits, DOL immigration-related wage
and hour investigations, general H-1B compliance, and DOJ-IER
anti-discrimination matters, including foreign sponsorship and
export control/ITAR issues.

Footnotes

1 U.S. Equal Employment Opportunity Commission, Press
Release: President Appoints Andrea R. Lucas EEOC Acting Chair (Jan.
21, 2025),https://www.eeoc.gov/newsroom/president-appoints-andrea-r-lucas-eeoc-acting-chair;
U.S. Equal Employment Opportunity Commission, Press Release: EEOC
Acting Chair Vows to Protect American Workers from Anti-American
Bias (Feb. 19, 2025),https://www.eeoc.gov/newsroom/eeoc-acting-chair-vows-protect-american-workers-anti-american-bias.

2 U.S. Equal Employment Opportunity Commission, Press
Release: LeoPalace Resort to Pay Over $1.4 Million in EEOC National
Origin Discrimination Lawsuit (Feb. 18, 2025),https://www.eeoc.gov/newsroom/leopalace-resort-pay-over-14-million-eeoc-national-origin-discrimination-lawsuit.

3 SeeChristopher J. DeGroff, Andrew L.
Scroggins, Samantha L. Brooks, and James P. Nasiri,Frozen
Pipeline: Examining the EEOC’s Quietest Year in a Decade,
Workplace Class Action Blog (Sept. 30, 2025),https://www.seyfarth.com/news-insights/frozen-pipeline-examining-the-eeocs-quietest-year-in-a-decade.html.

4 U.S. Equal Employment Opportunity Commission:
Discrimination Against American Workers is Against the Law,https://www.eeoc.gov/discrimination-against-american-workers-against-law.

5 U.S. Equal Employment Opportunity Commission: National
Origin Discrimination,https://www.eeoc.gov/national-origin-discrimination.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.