EXPERT INSIGHT 56 WWW.LAWYER-MONTHLY.COM | MAY 2022 About Mary E. Pivec, Esq. Ms Pivec has practiced employment and immigration compliance law since 1981. In 1966, she formed Pivec & Associates, PLLC to offer clients her experience as defence counsel in worksite enforcement law – with a concentration in compliance with the statutes and regulations governing the sponsorship and employment of foreign workers. She also consults and has served as an expert witness in civil and criminal cases involving immigration-related employment discrimination, H-1B, H-2B wage and hour and recordkeeping compliance, I-9 verification/E-Verify compliance, employer sanctions violations and penalties, visa fraud and labour certification. Mary Pivec Founding Partner Pivec & Associates, PLLC 12397 Grantley Court, Woodbridge, VA 22192 Tel: +1 571-490-4524 Email: mpivec@piveclaw.com www.piveclaw.com www.jurispro.com/ expert/mary-pivec-6193 its kind to find liability for systemic citizenship status discrimination against US workers under 8 U.S.C. 1324b resulting from recruitment and selection practices approved by the DOL for use in PERM cases. While Section 1324b requires proof of employer intent to discriminate, the Office of the Chief Administrative Hearing Officer (OCAHO), which has original and exclusive jurisdiction over Section 1324b claims, has recognised a cause of action for intentional discrimination in the “pattern or practice” proof model approved by the Supreme Court in the 1978 case of US v Teamsters in prior decisions – one of the causes of action pled by EIR in its complaint against Facebook. This proof model allows a complainant to establish proof of a presumption of intentional discrimination where a facially immigration-neutral employment practice (such as using different recruitment standards for the non-protected class, i.e. temporary foreign workers) results in a statistically significant adverse impact on a protected class, e.g. US citizens, US nationals, some lawful permanent residents, refugees and asylees. Nevertheless, the ALJ’s denial of Facebook’s motion to dismiss the IER complaint is an agency decision that has not been subjected to judicial review. Unfortunately for employers and practitioners, IER touts it as definitive and will continue to follow it in investigating and prosecuting employers until it is overturned by a higher court. In your opinion, how likely is this settlement to affect the landscape of corporate sponsorships and immigration law in the US going forward? In what ways? Six months out from the date of settlement, it is difficult to assess whether the Facebook decision has had a significant impact on corporate green card sponsorships due to the lack of published statistics. Most of the largest corporate sponsors have inhouse immigration teams who function independently of their corporate HR teams, particularly in management of the PERM process. It remains to be seen whether these in-house immigration teams will have the capital to convince higher management of the need to merge PERM and non-PERM recruitment and selection practices due to the difficulty of managing such a transition and producing the kind of approval statistics obtained where the processes were separately tracked and managed. Time will tell whether the DOL and IER will partner to identify employers whose PERM recruitment track record shows poor or no results in attracting US workers protected from citizenship status discrimination. What advice would you give to companies looking to sponsor their temporary foreign workers for permanent residence in the wake of this decision? Large and mid-size employers with a robust H-1B sponsorship program who typically file 100 or more PERM applications per year using different recruitment and selection procedures than those used for standard hiring would be wise to commission an independent legal assessment of their risk of systemic citizenship status discrimination claims. Such a study would examine the statistical differences in selection as between foreign national workers and US workers (inclusive of US citizens, permanent residents, refugees and asylees) and temporary foreign workers under PERM sponsorship. The results of such a study should guide the management of future PERM filings.
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