Legal Updates

Federal Agencies Signal Focus On National Origin Discrimination

Programs such as the federal H-1B non-immigrant visa program have traditionally allowed U.S. employers to recruit foreign talent in fields like technology, engineering, and education. Recent messaging from the White House and federal agencies, however, makes clear that the Trump Administration aims to curtail employers’ ability to recruit foreign employees, with the goal of eradicating perceived national origin discrimination and maximizing job opportunities for American workers.

Background: Project Firewall

The H-1B visa program provides a means for U.S. businesses to recruit foreign workers in “specialty occupations,” often technical in nature. As one of the prerequisites for an H-1B visa, the employer must certify that it will pay the foreign employee at least the prevailing wage rate for the position, and that hiring the worker will not displace American employees.

On September 19, 2025, spurred by concerns of widespread noncompliance with H-1B regulations, the U.S. Department of Labor (DOL) announced the launch of Project Firewall, a comprehensive enforcement initiative designed to protect the rights, wages, and job opportunities of highly skilled American workers. The DOL’s initiative coincided with the recently issued “Proclamation” by the White House imposing a one-time $100,000 fee for new H-1B petitions. (That action is the target of ongoing court challenges.)

Project Firewall introduces a new facet of federal enforcement, in the form of DOL-initiated investigations into employers suspected of unlawful practices in hiring foreign workers. Previously, the agency could initiate an investigation only upon receipt of a formal complaint.

EEOC Endorses Project Firewall And Issues A Warning To Employers

Another key feature of Project Firewall is robust interagency collaboration, as evidenced by recent action on the part of the Equal Employment Opportunity Commission (EEOC).

On November 19, 2025, the EEOC issued a press release highlighting the release of a new one-page technical assistance document titled “Discrimination Against American Workers is Against the Law,” as well as the updating of the national origin discrimination landing page on the EEOC’s website. The press release stressed the EEOC Chair’s priority of confronting “unlawful anti-American national origin bias.”

The EEOC’s technical assistance document provides examples of actions constituting national origin discrimination:
 

• Discriminatory job advertisements (for example, “H-1B preferred” or “H-1B only”);

• “Benching” U.S. workers in favor of less highly paid H-1B employees;

• Harassment based on national origin;

• Retaliation motivated by an employee’s protected activity, such as objecting to perceived national origin discrimination or filing an EEOC charge.

Importantly, the EEOC emphasizes that an employer cannot defend a decision to hire a foreign worker over a U.S. worker by relying on customer/client preferences, labor cost considerations, or assumptions about the relative productivity of national origin groups.

Further Agency Press Releases

On November 24, 2025, the DOL issued a press release applauding the EEOC for its technical assistance document, and celebrating the partnership between the two agencies in “sharing data, clarifying employer obligations, and aligning enforcement tools.” The DOL’s press release also highlights its partnerships with the Department of Justice’s Civil Rights Division and with U.S. Citizenship and Immigration Services (USCIS), as part of a “whole-of-government effort.”

The next day, the EEOC issued an “In Case You Missed It” press release, referring to the DOL’s press release and adding a statement from EEOC Chair Andrea Lucas. Lucas stated that “[w]ith the scale of unlawful anti-American discrimination we’re seeing, robust investigation and enforcement – within the EEOC and with our federal partners – is essential to protecting America’s workforce.”

Implications For Employers

These recent statements make clear that the federal agencies responsible for enforcing employment visa regulations will be working in concert to carry out the Trump Administration’s mission of prioritizing American workers. As such, employers should tread carefully and consider their risk appetite in recruiting and hiring foreign nationals under work visas.

In addition, employers are advised to:
 

• Carefully review their hiring practices with experienced employment counsel;

• Review vendor and staffing agency agreements for language that could imply a work visa or citizenship preference;

• Revise any job postings containing language suggesting a preference based on national origin; and

• Ensure that all HR personnel and hiring managers receive regular and up-to-date training on national origin non-discrimination obligations.

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If you have questions about these recent steps by the DOL and the EEOC, or if you need assistance with any other employment discrimination issue, please feel free to reach out to one of our employment attorneys.