EEOC And DOJ Intensify Focus On Ensuring Non Discrimination Against Americans Based On Their National Origin

This alert was first published as an update on November 24.

Employers that include foreign talent as part of their workforces, particularly programs like the H-1B non-immigrant visa program, should pay close attention to recent enforcement information provided by the Equal Employment Opportunity Commission (EEOC) and the Department of Justice's Civil Rights Division Immigrant and Employee Rights (IER) Section. Leadership at both agencies have made clear that practices disadvantaging U.S. workers in favor of nonimmigrant visa holders violate federal law, including Title VII of the Civil Rights Act of 1964, and the current administration is prioritizing these cases.

From the outset of her tenure leading the EEOC, Chair Andrea Lucas has been vocal that the Agency would prioritize protecting American workers from anti-American bias.¹Some enforcement activities were constrained by the absence of a quorum of Commissioners. Nonetheless, the EEOC did file some complaints aligned with this priority. For example, the EEOC obtained a $1.4 million settlement of a suit alleging that an employer provided non-Japanese employees, including multiple former employees of American national origin, with less favorable wages, benefits, and terms and conditions of employment compared to employees from Japan who held equal or lesser positions.²In another case, the EEOC asserted claims of discrimination on behalf of Black, American workers, with allegations that the employer gave preference in assignments and pay to non-Black, non-American workers authorized to work under H-2A visas.³

In the latest advancement of this priority, the EEOC published technical assistance in the form of a fact sheet titled "Discrimination Against American Workers Is Against the Law."⁴It also updated itsnational origin discrimination landing page⁵to consolidate key resources for employers and workers. Through these resources, the EEOC underscores that Title VII protects all employees, regardless of their national origin status, including American workers, and that discrimination occurs when employers favor foreign workers or those with particular visa statuses over qualified U.S. applicants.

The fact sheet provides concrete examples of unlawful conduct. High-risk areas include:

• Discriminatory job advertisements. Examples include job postings stating "H-1B preferred" or "H-1B only."
• Disparate treatment in hiring, firing, job assignments, compensation, training, or promotion. Examples include terminating American workers on the bench between assignments at a significantly higher rate than visa holders, or making the application process more onerous for U.S. workers than visa holders.
• Harassment. Examples include subjecting an employee to unwelcome remarks or conduct based on national origin.
• Retaliation. Examples include treating an individual differently on account of their objections or opposition to national origin discrimination at work.

The EEOC also warns that employers cannot defend a decision to hire foreign workers over American workers by relying on common business justifications, calling out in particular client preferences, cost considerations, or assumptions about the work ethic of certain national origin groups.

This EEOC priority aligns with DOJ IER activity, which has seen an uptick in charges alleging that companies "reserved" certain jobs for temporary visa holders or erected barriers that discouraged U.S. workers from applying. These charges are often worker-initiated, but IER must investigate all completed charges. Recent settlements have included civil penalties, policy overhauls, and mandatory training for employers whose job advertisements or recruiting processes unlawfully preferred H-1B workers or imposed more burdensome application steps on U.S. applicants. Even with a limited number of attorneys, IER enforcement remains active and accelerating.

The Department of Labor has also ramped up its scrutiny of H-1B sponsorship practices through its new initiative,Project Firewall. Under this effort, the Wage and Hour Division is empowered to initiate Secretary-certified investigations into employers suspected of wage violations, improper non-productive "benching," or other practices that may disadvantage U.S. workers in favor of H-1B visa holders. As DOL explained when announcing the initiative,Project Firewallis intended "to safeguard the rights, wages, and job opportunities of American workers by ensuring employers prioritize qualified Americans when hiring and holding employers accountable if they abuse the H-1B visa process."

What Employers Should Do Now

Employers should review both their sponsorship practices and broader hiring operations to ensure that they are free from anti-American bias. Key steps include:

1. Reassess Immigration and Sponsorship Programs

• Evaluate H-1B and other visa-based programs with an eye toward the rapidly changing regulatory and enforcement environment, including new wage-related rules and recent executive actions. Ensure these programs are administered in ways that do not disadvantage U.S. workers while preserving lawful pathways to recruit and retain the highly skilled global talent essential to U.S. competitiveness. Clear documentation and consistency are critical as expectations continue to rise.
• For PERM, review how labor-market testing steps are carried out and assess whether application procedures are applied as consistently as practical across all candidates. Employers should be aware that the PERM process is a highly technical, regulation-driven framework that does not always align cleanly with modern recruiting practices. IER has signaled it will continue scrutinizing distinctions employers draw between PERM workflows and broader recruitment operations. Because these issues can create tension between DOL requirements and anti-discrimination obligations, employers should evaluate their approach in consultation with experienced counsel.
• Be mindful of the broader misalignment between DOJ enforcement priorities and DOL's PERM rules. Although many stakeholders have noted that the PERM regulations are decades old and would benefit from modernization, substantial reform is unlikely in the near term. This regulatory mismatch also contributes to an inconsistency in employer practices. Employers may determine whether, and to what extent, to adjust their practices, but should do so with a clear understanding of the associated compliance risks in the current environment.

2. Audit Recruiting and Vendor Practices

• Review recruiting strategies, staffing agency relationships, and vendor agreements for language that could imply a visa or citizenship preference.
• Scrutinize job postings for any terminology suggesting sponsorship preference.

3. Strengthen Title VII Compliance

• Ensure HR, recruiting, and talent acquisition teams receive regular training on national origin nondiscrimination obligations.
• Document objective hiring criteria and maintain robust records demonstrating fair, consistent, and lawful decision-making.
• Be alert for EEOC charges that include allegations of national origin discrimination, and particularly allegations of discrimination against those of American national origin, as such charges may be prioritized for focused investigation.

As EEOC, DOJ, and DOL sharpen their focus on anti-American bias and sponsorship-related discrimination, employers should act now to ensure their processes are free from any such bias. Proactive compliance, paired with clear documentation and consistent processes is essential to mitigating risk as enforcement escalates.

Need support reviewing your immigration practices or assessing EEOC charge risks? OurImmigration Compliance and EnforcementandComplex Discrimination Litigationteams are here to help.

For more information, contact Dawn Lurie. The Seyfarth Immigration Compliance & Investigations specialty group –recognized as national leaders in the field – is trusted by top Fortune 100 companies as well as small businesses across the country for strategic, practical advice. The group offers comprehensive guidance on Form I-9 and E-Verify compliance, ICE inspections, and worksite enforcement actions, internal immigration assessments, I-9 audits, DOL immigration-related wage and hour investigations, general H-1B compliance, and DOJ-IER anti-discrimination matters, including foreign sponsorship and export control/ITAR issues.

Footnotes

1 U.S. Equal Employment Opportunity Commission, Press Release: President Appoints Andrea R. Lucas EEOC Acting Chair (Jan. 21, 2025),https://www.eeoc.gov/newsroom/president-appoints-andrea-r-lucas-eeoc-acting-chair; U.S. Equal Employment Opportunity Commission, Press Release: EEOC Acting Chair Vows to Protect American Workers from Anti-American Bias (Feb. 19, 2025),https://www.eeoc.gov/newsroom/eeoc-acting-chair-vows-protect-american-workers-anti-american-bias.

2 U.S. Equal Employment Opportunity Commission, Press Release: LeoPalace Resort to Pay Over $1.4 Million in EEOC National Origin Discrimination Lawsuit (Feb. 18, 2025),https://www.eeoc.gov/newsroom/leopalace-resort-pay-over-14-million-eeoc-national-origin-discrimination-lawsuit.

3 SeeChristopher J. DeGroff, Andrew L. Scroggins, Samantha L. Brooks, and James P. Nasiri,Frozen Pipeline: Examining the EEOC's Quietest Year in a Decade, Workplace Class Action Blog (Sept. 30, 2025),https://www.seyfarth.com/news-insights/frozen-pipeline-examining-the-eeocs-quietest-year-in-a-decade.html.

4 U.S. Equal Employment Opportunity Commission: Discrimination Against American Workers is Against the Law,https://www.eeoc.gov/discrimination-against-american-workers-against-law.

5 U.S. Equal Employment Opportunity Commission: National Origin Discrimination,https://www.eeoc.gov/national-origin-discrimination.

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