Author: Melissa A. Silver, XpertHR Legal Editor
August 9, 2013
The US Department of Justice (DOJ) announced in a press release that it filed a lawsuit against Autobuses Ejecutivos LLC, d/b/a Omnibus Express, a bus company based in Houston, Texas. The DOJ claims that Omnibus Express discriminated against US citizens and lawful permanent residents in violation of the Immigration and Nationality Act (INA) when it preferred to hire temporary non-immigrant visa holders as bus drivers.
In particular, the complaint alleges "that from at least September 2012 to February 2013, Omnibus Express failed to consider the applications of many qualified U.S. citizens and other protected individuals, or actively discouraged them from pursuing their applications, while at the same time petitioning the U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) for permission to hire up to 50 foreign workers on H-2B visas."
US employers use H-2B visas to fill seasonal nonagricultural positions. In order to do so, the employer must demonstrate the unavailability of US workers through a temporary labor certification application processed by the DOL. In this case, the complaint alleges that Omnibus Express hired 42 H-2B visa workers during the September 2012 to February 2013 timeframe, while representing to the DOL and the USCIS that there were not enough qualified US workers to fill the bus driver positions.
The complaint was filed with the Executive Office of Immigration Review's Office of the Chief Administrative Hearing Officer (OCAHO), which decides various types of cases involving the INA, including cases in which employers:
- Knowingly hire, recruit or refer for a fee unauthorized aliens, or continue to employ unauthorized aliens;
- Fail to comply with employment eligibility verification requirements;
- Engage in immigration-related unfair employment practices; and
- Engage in immigration-related document fraud.
The DOJ seeks an order that would prohibit Omnibus Express from discriminating in the future, and would grant civil penalties, back pay and other available remedies.