By: Bruce E. Buchanan, Sebelist Buchanan Law


In closely watched litigation (at least by many immigration attorneys), OCAHO issued an order denying a Motion to Dismiss in United States v. Facebook, Inc., 14 OCAHO no. 1386b (June 2, 2021).

Facebook’s Motion to Dismiss

On Dec. 3, 2020, the U.S. government, through Immigrant and Employee Rights Section (IER), filed a complaint with OCAHO alleging Facebook violated 8 U.S.C. § 1324b by discriminating against “U.S. workers” in its hiring and recruiting practices related to positions under the permanent labor certification (PERM) process between Jan. 1, 2018, and Sept. 18, 2019. On February 18, 2021, Facebook filed its Motion to Dismiss asserting OCAHO lacks subject matter jurisdiction over the claims because the PERM process is administered by the Department of Labor (DOL) which “has exclusive authority to enforce, interpret, or modify the PERM regulations.”

Alternatively, Facebook argues the Complaint failed to state a claim upon which relief can be granted because “the DOJ’s claim that an employer’s good-faith PERM recruitment process must closely resemble its normal recruitment process is baseless.” Facebook contends there is no legal requirement that the PERM recruitment process be similar to their normal recruitment process; rather, PERM regulations only require an employer “to perform a test of the labor market to determine whether there are available, able, and willing U.S. applicants who are minimally qualified for the PERM position.” Thus, Facebook asserts “the Complaint fails to present any competent evidence adequate to show that Facebook, in violation of 8 U.S.C. § 1324b, regularly and purposefully treated U.S. workers less favorably than temporary foreign workers as a standard operating procedure.”

Opposition to Motion

In its Opposition, the U.S. government rejects Facebook’s assertion that the Complaint is an attempt to litigate the PERM process; instead, the U.S. government asserts OCAHO “has exclusive jurisdiction over the United States’ claims, as 8 U.S.C. § 1324b is the sole basis for liability in the Complaint.” Further, the U.S. government states “OCAHO need not adjudicate Facebook’s compliance with the requirements of the PERM rules to determine whether Facebook violated § 1324b while navigating the perm process.” In so doing, the U.S. government cites an OCAHO decision in which an Administrative Law Judge (ALJ) found an employer violated § 1324b when it “preselected a candidate for a position in connection with a PERM labor certification application” and failed to consider or hire qualified U.S. workers. See Iron Workers Local 455 v. Lake Constr. & Dev. Corp., 7 OCAHO no. 964, 632, 694–95 (1997)).
Facebook distinguishes Iron Workers because in that case, the employer hired an undocumented worker and filed a PERM application that was ultimately rejected. Moreover, Facebook argues the ALJ in Iron Workers gave “substantial weight” to the DOL’s findings adverse to the employer. Facebook also claims that the U.S. government failed to demonstrate in its filings that one federal agency can “overrule the decision of another agency on a question that Congress expressly delegated to the latter agency.” Facebook states the ALJ determined OCAHO had “subject-matter jurisdiction over hiring and recruiting discrimination claims that occur in the context of a permanent labor certification process, and DOL's prior decision regarding the validity of the permanent labor certification did not affect that jurisdiction.”

Decision

In denying Facebook’s Motion to Dismiss, OCAHO states the bar for pleadings at OCAHO is low. See United States v. Mar-Jac Poultry, Inc., 10 OCAHO no. 1148, 8–10 (2012). OCAHO’s rules do not “require that a complainant plead a prima facie case to pursue a claim under 8 U.S.C. § 1324b.” A complaint “must plead facts that reasonably suggest a nexus between” the decision not to hire the complainant and the complainant’s protected status. Montalvo v. Kering America Inc., 14 OCAHO no. 1350, 5 (2020) (citing Kelly Legal Services, 12 OCAHO no. 1282 at 9). A complaint wherein a respondent declined to hire the complainant because of his citizenship status (U.S. citizen), “due to its preference for hiring foreign workers who have H-1B visas” was sufficient to survive a motion to dismiss, especially in light of the forum’s “liberal pleading standards[.]” Montalvo, 14 OCAHO no. 1350 at 5.

In deciding the Motion, OCAHO discussed Section 1324b which states “[i]t is an unfair immigration-related employment practice for a[n] entity to discriminate against any [protected] individual . . . with respect to the hiring or recruitment of the individual for employment . . . because of such individual's citizenship status.” Congress provided “exceptions” in 8 U.S.C. § 1324b(a)(2) - Congress excluded small businesses with three or fewer employees, discrimination complaints which could be pursued under section 703 of the Civil Rights Act of 1964, and citizenship discrimination claims where citizenship is “required in order to comply with law, regulation, or executive order, or required by Federal, State, or local government contract…”. OCAHO found the exceptions at § 1324b(a)(2) are substantive in nature and are jurisdictional as they limit the scope of cases.

OCAHO said if Congress wanted to provide a fourth exception involving DOL or the PERM process, it could have done so in § 1324b(a)(2). However, it did not do so. Further, OCAHO stated it was not inclined to presume such an exception into existence, as judicially practiced statutory interpretation “should respect legislative supremacy.”

Therefore, OCAHO, in denying the Motion, concluded:
To the extent Respondent has framed the issue at hand as a referendum on its DOL PERM process and whether the PERM process imposes certain obligations on employers, the Court will defer to the Department of Labor. To the extent Complainant seeks to demonstrate that Respondent has engaged in an unfair immigration-related employment practices as proscribed in 8 U.S.C. § 1324b, the Court has and will exercise exclusive subject matter jurisdiction.
In totality, the Complaint raises an inference of discrimination as the Complaint contains facts which “reasonably suggest a nexus between Respondent’s decision[s]” related to divergent recruitment tactics and the citizenship status of affected U.S. workers. Montalvo, 14 OCAHO no. 1350 at 5 (2020) (citing Kelly Legal Services, 12 OCAHO no. 1282 at 9). As the Court has previously held, allegations of manipulating the hiring practice to disqualify individuals based on citizenship, meet the legal standard in this forum for stating a claim upon which relief can be granted. See Montalvo, 14 OCAHO no. 1350 at 5.

I, along with many others, will continue to closely follow this Facebook litigation. If you want to know more information on immigration compliance, including citizenship status discrimination, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.