The Department of Justice has adopted an administrative stance allowing business groups to exclude American workers from job postings directed at resident H-1B and other non-immigrant foreign professionals. The policy interpretation, originating from an Administrative Law Judge within the Office of the Chief Administrative Hearing Officer, asserts that discriminatory advertising does not represent a discrete cause of legal action under the Immigration and Nationality Act.
According to the administrative ruling, the statute and its accompanying regulations limit evidence of advertising discrimination to cases alleging nonselection, recruitment, or termination, rather than treating advertising infractions as independently actionable violations. John Miano, an attorney representing worker advocacy groups who has litigated numerous anti-discrimination cases against tech sector subcontractors, criticized the interpretation. He argued that the stance sets back decades of enforcement against discriminatory job advertisements and forces prospective plaintiffs to pursue costly appeals through the federal court system.
The policy was established in early August, leaving Attorney General Todd Blanche a sixty-day window to place the determination under formal review. Despite appeals from thirteen House legislators and advocacy groups who urged intervention by an October deadline, the department did not overturn the ruling. In a letter dated October 9, lawmakers pressed for executive review, though the department ultimately declined to alter its course.
Defending the agency’s record, the Department of Justice stated that it thoroughly reviewed the administrative decision alongside stakeholder concerns and determined the outcome aligned with established precedent. The agency emphasized that it continues to target unlawful hiring practices through its Protecting U.S. Workers Initiative. Pointing to recent enforcement actions, the department highlighted multimillion-dollar settlements secured against major corporations and staffing firms, including a recent $5 million penalty announced against grocery firm Instacart for excluding American applicants from roles designated for temporary visa workers seeking permanent residency.
Assistant Attorney General for Civil Rights Harmeet Dhillon has previously pursued legal actions against major employers accused of sidelining domestic candidates. However, broader administration efforts to reform temporary visa programs have faced ongoing legal challenges funded by corporate users of the visa systems.
Critics contend that white-collar visa programs have displaced substantial numbers of domestic professionals, shifting employment opportunities toward foreign workers and altering the domestic labor market across Silicon Valley, finance, and healthcare sectors. Vice President JD Vance and other officials have raised concerns regarding program integrity, pointing to instances where large corporate layoffs coincided with substantial increases in foreign worker visa approvals.
The debate over high-skilled immigration continues to draw competing pressures from corporate leaders emphasizing workforce needs and political figures seeking stronger protections for domestic professionals. While administration officials maintain that enforcement efforts remain active against direct hiring discrimination, legal analysts note that narrowing the scope of independent advertising claims under immigration statutes introduces significant procedural hurdles for applicants seeking legal redress.
