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This alert was first published as an update<\/a> on November 24.<\/p>\n Employers that include foreign talent as part of their
From the outset of her tenure leading the EEOC, Chair Andrea
In the latest advancement of this priority, the EEOC published
The fact sheet provides concrete examples of unlawful conduct.
The EEOC also warns that employers cannot defend a decision to
This EEOC priority aligns with DOJ IER activity, which has seen
The Department of Labor has also ramped up its scrutiny of H-1B
What Employers Should Do Now<\/p>\n Employers should review both their sponsorship practices and
1. Reassess Immigration and Sponsorship
2. Audit Recruiting and Vendor Practices<\/p>\n
3. Strengthen Title VII Compliance<\/p>\n
As EEOC, DOJ, and DOL sharpen their focus on anti-American bias
Need support reviewing your immigration practices or assessing
For more information, contact Dawn Lurie. The Seyfarth
Footnotes<\/p>\n 1 U.S. Equal Employment Opportunity Commission, Press
2 U.S. Equal Employment Opportunity Commission, Press
3 SeeChristopher J. DeGroff, Andrew L.
4 U.S. Equal Employment Opportunity Commission:
\nworkforces, particularly programs like the H-1B non-immigrant visa
\nprogram, should pay close attention to recent enforcement
\ninformation provided by the Equal Employment Opportunity Commission
\n(EEOC) and the Department of Justice’s Civil Rights Division
\nImmigrant and Employee Rights (IER) Section. Leadership at both
\nagencies have made clear that practices disadvantaging U.S. workers
\nin favor of nonimmigrant visa holders violate federal law,
\nincluding Title VII of the Civil Rights Act of 1964, and the
\ncurrent administration is prioritizing these cases.<\/p>\n
\nLucas has been vocal that the Agency would prioritize protecting
\nAmerican workers from anti-American bias.1Some
\nenforcement activities were constrained by the absence of a quorum
\nof Commissioners. Nonetheless, the EEOC did file some complaints
\naligned with this priority. For example, the EEOC obtained a $1.4
\nmillion settlement of a suit alleging that an employer provided
\nnon-Japanese employees, including multiple former employees of
\nAmerican national origin, with less favorable wages, benefits, and
\nterms and conditions of employment compared to employees from Japan
\nwho held equal or lesser positions.2In another case, the
\nEEOC asserted claims of discrimination on behalf of Black, American
\nworkers, with allegations that the employer gave preference in
\nassignments and pay to non-Black, non-American workers authorized
\nto work under H-2A visas.3<\/p>\n
\ntechnical assistance in the form of a fact sheet titled “Discrimination Against American Workers Is Against
\nthe Law<\/a>.”4It also updated itsnational origin discrimination landing
\npage<\/a>5to consolidate key resources for employers and
\nworkers. Through these resources, the EEOC underscores that Title
\nVII protects all employees, regardless of their national origin
\nstatus, including American workers, and that discrimination occurs
\nwhen employers favor foreign workers or those with particular visa
\nstatuses over qualified U.S. applicants.<\/p>\n
\nHigh-risk areas include:<\/p>\n
\nDiscriminatory job advertisements. Examples include job
\npostings stating “H-1B preferred” or “H-1B
\nonly.”
\n
\nDisparate treatment in hiring, firing, job assignments,
\ncompensation, training, or promotion. Examples include terminating
\nAmerican workers on the bench between assignments at a
\nsignificantly higher rate than visa holders, or making the
\napplication process more onerous for U.S. workers than visa
\nholders.
\n
\nHarassment. Examples include subjecting an employee to
\nunwelcome remarks or conduct based on national origin.
\n
\nRetaliation. Examples include treating an individual
\ndifferently on account of their objections or opposition to
\nnational origin discrimination at work.
<\/p>\n
\nhire foreign workers over American workers by relying on common
\nbusiness justifications, calling out in particular client
\npreferences, cost considerations, or assumptions about the work
\nethic of certain national origin groups.<\/p>\n
\nan uptick in charges alleging that companies “reserved”
\ncertain jobs for temporary visa holders or erected barriers that
\ndiscouraged U.S. workers from applying. These charges are often
\nworker-initiated, but IER must investigate all completed charges.
\nRecent settlements have included civil penalties, policy overhauls,
\nand mandatory training for employers whose job advertisements or
\nrecruiting processes unlawfully preferred H-1B workers or imposed
\nmore burdensome application steps on U.S. applicants. Even with a
\nlimited number of attorneys, IER enforcement remains active and
\naccelerating.<\/p>\n
\nsponsorship practices through its new initiative,Project
\nFirewall. Under this effort, the Wage and Hour Division is
\nempowered to initiate Secretary-certified investigations into
\nemployers suspected of wage violations, improper non-productive
\n“benching,” or other practices that may disadvantage U.S.
\nworkers in favor of H-1B visa holders. As DOL explained when
\nannouncing the initiative,Project Firewallis intended
\n“to safeguard the rights, wages, and job opportunities of
\nAmerican workers by ensuring employers prioritize qualified
\nAmericans when hiring and holding employers accountable if they
\nabuse the H-1B visa process.”<\/p>\n
\nbroader hiring operations to ensure that they are free from
\nanti-American bias. Key steps include:<\/p>\n
\nPrograms<\/p>\n
\nEvaluate H-1B and other visa-based programs with an eye toward
\nthe rapidly changing regulatory and enforcement environment,
\nincluding new wage-related rules and recent executive actions.
\nEnsure these programs are administered in ways that do not
\ndisadvantage U.S. workers while preserving lawful pathways to
\nrecruit and retain the highly skilled global talent essential to
\nU.S. competitiveness. Clear documentation and consistency are
\ncritical as expectations continue to rise.
\n
\nFor PERM, review how labor-market testing steps are carried out
\nand assess whether application procedures are applied as
\nconsistently as practical across all candidates. Employers should
\nbe aware that the PERM process is a highly technical,
\nregulation-driven framework that does not always align cleanly with
\nmodern recruiting practices. IER has signaled it will continue
\nscrutinizing distinctions employers draw between PERM workflows and
\nbroader recruitment operations. Because these issues can create
\ntension between DOL requirements and anti-discrimination
\nobligations, employers should evaluate their approach in
\nconsultation with experienced counsel.
\n
\nBe mindful of the broader misalignment between DOJ enforcement
\npriorities and DOL’s PERM rules. Although many stakeholders
\nhave noted that the PERM regulations are decades old and would
\nbenefit from modernization, substantial reform is unlikely in the
\nnear term. This regulatory mismatch also contributes to an
\ninconsistency in employer practices. Employers may determine
\nwhether, and to what extent, to adjust their practices, but should
\ndo so with a clear understanding of the associated compliance risks
\nin the current environment.
<\/p>\n
\nReview recruiting strategies, staffing agency relationships,
\nand vendor agreements for language that could imply a visa or
\ncitizenship preference.
\n
\nScrutinize job postings for any terminology suggesting
\nsponsorship preference.
<\/p>\n
\nEnsure HR, recruiting, and talent acquisition teams receive
\nregular training on national origin nondiscrimination
\nobligations.
\n
\nDocument objective hiring criteria and maintain robust records
\ndemonstrating fair, consistent, and lawful decision-making.
\n
\nBe alert for EEOC charges that include allegations of national
\norigin discrimination, and particularly allegations of
\ndiscrimination against those of American national origin, as such
\ncharges may be prioritized for focused investigation.
<\/p>\n
\nand sponsorship-related discrimination, employers should act now to
\nensure their processes are free from any such bias. Proactive
\ncompliance, paired with clear documentation and consistent
\nprocesses is essential to mitigating risk as enforcement
\nescalates.<\/p>\n
\nEEOC charge risks? OurImmigration Compliance and Enforcement<\/a>andComplex Discrimination Litigation<\/a>teams are
\nhere to help.<\/p>\n
\nImmigration Compliance & Investigations specialty group
\n\u2013recognized as national leaders in the field \u2013 is
\ntrusted by top Fortune 100 companies as well as small businesses
\nacross the country for strategic, practical advice. The group
\noffers comprehensive guidance on Form I-9 and E-Verify compliance,
\nICE inspections, and worksite enforcement actions, internal
\nimmigration assessments, I-9 audits, DOL immigration-related wage
\nand hour investigations, general H-1B compliance, and DOJ-IER
\nanti-discrimination matters, including foreign sponsorship and
\nexport control\/ITAR issues.<\/p>\n
\nRelease: President Appoints Andrea R. Lucas EEOC Acting Chair (Jan.
\n21, 2025),https:\/\/www.eeoc.gov\/newsroom\/president-appoints-andrea-r-lucas-eeoc-acting-chair<\/a>;
\nU.S. Equal Employment Opportunity Commission, Press Release: EEOC
\nActing Chair Vows to Protect American Workers from Anti-American
\nBias (Feb. 19, 2025),https:\/\/www.eeoc.gov\/newsroom\/eeoc-acting-chair-vows-protect-american-workers-anti-american-bias<\/a>.<\/p>\n
\nRelease: LeoPalace Resort to Pay Over $1.4 Million in EEOC National
\nOrigin Discrimination Lawsuit (Feb. 18, 2025),https:\/\/www.eeoc.gov\/newsroom\/leopalace-resort-pay-over-14-million-eeoc-national-origin-discrimination-lawsuit<\/a>.<\/p>\n
\nScroggins, Samantha L. Brooks, and James P. Nasiri,Frozen
\nPipeline: Examining the EEOC’s Quietest Year in a Decade,
\nWorkplace Class Action Blog (Sept. 30, 2025),https:\/\/www.seyfarth.com\/news-insights\/frozen-pipeline-examining-the-eeocs-quietest-year-in-a-decade.html<\/a>.<\/p>\n
\nDiscrimination Against American Workers is Against the Law,https:\/\/www.eeoc.gov\/discrimination-against-american-workers-against-law<\/a>.<\/p>\n