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Following acting chair Andrea Lucas's earlier pledge to more aggressively enforce civil rights laws against employers who disadvantage U.S. workers, the U.S. Equal Employment Opportunity Commission (EEOC) has released a new Technical Assistance document cautioning companies that preferring H-1B visa holders may constitute unlawful national origin discrimination under Title VII of the Civil Rights Act.
The guidance highlights a concern over job advertisements that explicitly prefer or require candidates from a particular country or with a specific visa status—for example, postings that state "H-1B preferred" or "H-1B only." According to the EEOC, such statements violate Title VII's prohibition on discriminatory job advertising based on national origin.
Beyond job postings, the EEOC reiterates that Title VII bars disparate treatment in all aspects of employment, including hiring, firing, job assignments, compensation, training, benefits, promotions, and demotions. The document provides examples of conduct that may constitute evidence of unlawful disparate treatment:
- Firing: Terminating U.S. workers who are "on the bench" between assignments at significantly higher rates than similarly situated visa-dependent employees.
- Hiring: Imposing more burdensome application procedures on U.S. applicants than on H-1B candidates—for instance, subjecting American workers to more onerous steps during the PERM process, which is the Department of Labor (DOL)-administered labor certification system that requires employers to test the U.S. labor market and demonstrate that no qualified, available U.S. workers exist before sponsoring a foreign national for permanent residence.
The EEOC's guidance stems from its emerging collaboration with the DOL as part of the recently launched Project Firewall. This DOL initiative is designed to ensure employers prioritize qualified U.S. workers in hiring and to hold companies accountable for abuses of the H-1B program. Project Firewall emphasizes cross-agency enforcement efforts, including coordination with the EEOC and with the Department of Justice's Civil Rights Division's Immigrant and Employee Rights Section (IER), which enforces the Immigration and Nationality Act's anti-discrimination provisions. In recent years, the IER has brought several high-profile enforcement actions against employers alleged to have engaged in a "pattern or practice of citizenship status discrimination" in recruitment for roles pursued through the PERM process.
As interagency coordination intensifies under Project Firewall, employers may encounter heightened scrutiny of hiring and recruitment practices and should proactively review their policies, job advertisements, and PERM procedures to ensure full compliance with Title VII and related anti-discrimination laws.
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