USCIS and DOJ announce MOU to Target Employers’ Unlawful Discrimination Against U.S. Workers

The Department of Justice’s Civil Rights Division and USCIS have signed an agreement “that expands their collaboration to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States.” The agreement is in furtherance of the federal law barring employment discrimination on the basis of citizenship or national origin. Ironically, the program is intended to pursue employers who “discriminate against U.S. workers in favor of foreign visa workers,” notwithstanding that federal law bars employment discrimination against foreign workers possessing lawful employment authorization.

The DOJ-USCIS agreement relates to enforcement of the unlawful discrimination component of the Immigration Reform and Control Act (IRCA), enacted in 1986. IRCA is the source of the requirement that employers complete I-9 forms and take other action to ensure employment authorization for new hires. The DOJ’s Immigrant and Employee Rights Section investigates and prosecutes employer actions that may discriminate against U.S. citizens and permanent residents in hiring practices, or who discriminate against lawful non-U.S. workers who maintain appropriate employment authorizations. The MOU appears to ignore the “national origin”-based discrimination element of the statute.

Under the agreement, each agency will refer to the other agency cases relating to its primary jurisdiction. DOJ will refer cases to violations of the Immigration and Nationality Act, such as facts which appear contrary to those supporting an approved employer petition. In turn, USCIS would refer to DOJ cases it considers to involve discriminatory hiring practices favoring non-U.S. workers.

The DOJ-USCIS agreement is in furtherance of the Trump Administration’s Executive Order on Buy American and Hire American.