In our increasingly globalized workplace, some industries require Americans to live and work abroad for extended periods of time, and/or need to recruit employees with special skills from other countries to work for them in the U.S. The U.S. Department of Justice (DOJ) has determined that employment ads that indicate a preference for people who hold certain types of visas are discriminatory. IBM is paying the price for violating these regulations.
This discrimination in employment ads is nothing new, according to critics. They say that many ads either allude to the fact that an H1-B Visa is preferred, or state it outright.
Generally, small tech companies are the ones cited by the government. However, multinational giant IBM has just agreed to pay civil penalties of more than $44,000 because of online job ads that indicated a preference for people who hold F-1 and H-1B visas. In addition to the monetary penalties, IBM has agreed to change its recruiting and procedures, and to train the appropriate employees so that they are in compliance with employment law.
According to the U.S. Citizenship and Immigration Services (USCIS), an H1-B Visa is for non-immigrant workers who come to the U.S. to engage in specialized work. This can involve occupations as varied as defense workers and fashion models. F-1 Visas, according to the USCIS, are issued to foreigners studying in the U.S. as full-time students.
An IBM spokesman noted that of the tens of thousands of job ads IBM has posted around the world, these preferences were stated in only a small percentage, and they pertained to jobs where the employee would be required to move overseas. The DOJ contends that even for jobs that are going to eventually be located abroad, according to the Immigration and Nationality Act (INA), employers cannot indicate their preference for people who have temporary visas over U.S. citizens and permanent residents for jobs that originate in the U.S.
One would assume that a corporate giant like IBM, which can hire the most experienced human resources professional around, would be aware that it is violating federal employment laws, yet clearly it can happen. That's why it is essential for employers to follow the law, and for employees as well as job seekers to be aware of their rights, and understand when they have been violated.
Source: Computerworld.com, "IBM settles with U.S. over alleged discrimination in job ads" Patrick Thibodeau, Sep. 30, 2013