When H-1B Preference Equals Discrimination

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In a case of “what were they thinking,” the Justice Department reached a settlement agreement with Iflowsoft, LLC, with respect to DOJ allegations that Iflowsoft engaged in a pattern or practice of citizenship status discrimination by preferring to hire foreign nationals over U.S. citizens.  The case arose out of Iflowsoft posting job advertisements for IT professionals, indicating a preference for individuals with H-1B work authorization, or Optional Practical Training, a temporary work authorized category for newly graduated foreign students. 

A U.S. citizen candidate for employment alleged discrimination, demonstrating that he was deterred from applying for a job at Iflowsoft by the company’s published preference for foreign workers.  In addition, the DOJ investigation showed that Iflowsoft hired a candidate with H-1B work authorization without considering a qualified U.S.citizen applicant, in violation of the statutory prohibition of discrimination based on citizenship status. 

Iflowsoft has agreed to pay $6,400 in civil penalties and an additional amount in excess of $7,000 in back pay to two U.S. citizens who were not hired, although qualified for the advertised position.  Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, stated “we are pleased to have reached a settlement with Iflowsoft and look forward to continuing to work with public and private employers to educate them about the anti-discrimination statutes protecting U.S.citizens.”

Given the substantial legal costs, fines, fees and statutory requirements attached to the hire of non-U.S. citizens, Iflowsoft’s actions look pretty wrong-headed, even before being subjected to a federal investigation, charges of discrimination and the resulting fines and penalties.

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