Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The U.S. Department of Justice (DOJ) and the Department of Homeland Security (DHS) have partnered to establish a framework to efficiently manage and maintain information sharing to better detect and eliminate fraud, abuse, and discrimination. The goal of the framework is to protect U.S. workers from employment discrimination resulting from policies that favor foreign visa workers.
On May 11, 2018, the DHS's United States Citizenship and Immigration Services (USCIS) and the DOJ's Civil Rights Division entered into a Memorandum of Understanding Regarding Information Sharing and Case Referrals.1 The Memorandum expands on the parties’ previously established partnership,2 and furthers the objective of President Trump’s Buy American and Hire American Executive Order.3 The implication for employers is that the two agencies will be able to more efficiently manage and coordinate their enforcement efforts against employers that use foreign workers over U.S. workers. According to USCIS Director L. Francis Cissna, the aim of the agreement is to “[break] down silos” and “enhance the level of coordination among investigators who often work on the same issues at different agencies.”
The partnership will likely aid both agencies regarding (1) an employer’s potential misuse of the employment-based immigrant and or non-immigrant visa programs to discriminate against available and qualified U.S. workers in violation of applicable laws and regulations; and (2) an employer’s potential violation of the statutes and regulations governing the processes for seeking employment-based immigrant (green-card processing) and/or non-immigrant (employment based) visas.
Under the Immigration and Nationality Act, 8 U.S.C. § 1324b, it is unlawful for employers to intentionally discriminate against or otherwise favor an employee due to national origin or citizenship status.4 The DOJ's U.S. Workers Initiative launched in 2017 specifically addresses this issue. Since the launch of the Initiative, the DOJ has opened dozens of investigations against employers, filed a lawsuit against one employer, and reached settlement agreements with several others. The information sharing and case referrals will likely increase the number and efficiency of these investigations.
The information sharing and case referrals is intended also to aid the USCIS’s efforts to ensure the integrity of employment-based immigration programs and improve its ability to detect and prevent fraud.
By June 25, 2018,5 both the USCIS and the DOJ will identify the type of information that each maintains that would be helpful to the other. They will then exchange a list of data elements regarding employers, including employer names, addresses, and types of immigration benefits the employers provide. The information will be updated monthly. Each agency will alert the other if either becomes aware of a violation that the other agency enforces.
Employers that have any questions regarding how this affects their hiring, recruitment, or firing policies should contact counsel.
1 U.S. Citizenship and Immigration Services, Memorandum of Understanding Between U.S. Department of Justice Civil Rights Division and the U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Regarding Information Sharing and Case Referrals (2018), available at https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports/MOU_5.11.2018.pdf.
2 The MOU expands on the parties’ 2010 partnership.
3 Proclamation No. 13788, 82 Fed. Reg. 18837 (Apr. 18, 2017).
4 U.S. Citizenship and Immigration Services, USCIS and the Justice Department Formalize Partnership to Protect U.S. Workers from Discrimination and Combat Fraud (2018), available at https://www.uscis.gov/news/news-releases/uscis-and-justice-department-formalize-partnership-protect-us-workers-discrimination-and-combat-fraud.
5 According to the Memorandum, the exact date is 45 days from the final execution of the agreement.