DOJ Is Not Slowing Down on PERM Recruitment Discrimination Investigations and What Employers Should Consider Doing Now

On August 3, 2026, OpenAI and Statsig signed a settlement agreement with the Department of Justice’s Immigrant and Employee Rights Section (IER) based on allegations that both companies required job applicants, including U.S. workers, to submit paper applications by mail for positions tied to the PERM permanent labor certification process, while other open positions could be applied for electronically. It is a fact pattern immigration and employment counsel should recognize immediately, because it is not new: IER reached a similar settlement with Facebook in 2021, Apple in 2023, and as of this spring, IER is in active litigation against Cloudera over a comparable practice.

These are not isolated enforcement actions. They sit inside the Civil Rights Division’s Protecting U.S. Workers Initiative, relaunched in 2025, which has produced a growing number of settlements over the past year across the technology and IT services sectors, including cases against companies that used AI tools to generate visa-restricted job advertisements. For employers that sponsor foreign nationals for green cards, this is now an active, increasingly well-resourced enforcement priority, not background risk. Below, we highlight the connecting threads of these cases, as well as what actions employers should take now and what they should avoid, in the PERM recruitment programs.

What Ties These PERM Recruitment Discrimination Cases Together

There is a very clear legal thread that connects these cases and stems from 8 U.S.C. § 1324b(a)(1)(B), which prohibits an employer from discriminating against a protected individual, including U.S. citizens, in hiring or recruitment because of their citizenship status. Layered on top of it is the Department of Labor’s PERM regulation at 20 C.F.R. § 656.10(c), which requires that PERM recruitment be conducted in good faith and, critically, in a manner consistent with how the employer normally recruits for comparable non-PERM roles.

The common thread across OpenAI/Statsig, Facebook, and Cloudera is that none of these settlements or complaints required proof of an explicit, on-the-record citizenship exclusion. Instead, in each case, IER’s theory rested on a simple allegation: PERM applicants faced a different, harder, or broken channel than everyone else. That separate channel is treated by IER as strong evidence of an intent to discourage U.S. workers from applying, regardless of whether the applicants ever interacted with a recruiter. That is the legal mechanism employers most often miss: a facially neutral operational decision (such as routing PERM applications to a dedicated inbox, requiring a mailed cover letter, or using a legacy portal) can independently create INA liability, with no discriminatory statement required.

The case outcomes also track a number of other themes. OpenAI/Statsig’s violation was limited to the mail-only requirement, and settled for a $1.2M penalty and a $2M back-pay fund. Facebook’s compounded the mail-only defect by also refusing to consider U.S. applicants who applied anyway and narrower recruiting channels, which drove its exposure up to a $4.75M penalty and up to $9.5M in back pay. Cloudera did not reach a negotiated resolution at all; DOJ filed an administrative complaint. The throughline is simple: the more the PERM path diverges from the standard path, and the less an employer engages once IER raises it, the more expensive the outcome.

Case Snapshots

Do

• Run a “stress test” audit. Confirm every PERM-related posting accepts applications through the same channel, portal, and applicant tracking system as every other posting at your company. No dedicated mailbox, no mail-only requirement, no separate portal.
• Give every PERM position a unique, searchable identifier and post it on both internal and external career sites, considering the structure IER required in the OpenAI/Statsig agreement.
• Keep PERM applicants inside your normal ATS, searchable and accessible to recruiters in the same way as non-PERM applicants.
• Apply identical, job-related screening. Use the same interview steps and assessments for PERM and comparable non-PERM candidates, and document the qualification standard against the PERM regulatory standard, rather than an internal hiring bar.
• Train everyone who touches PERM recruiting: recruiters, hiring managers, contractors, and any staffing agency.
• Self-audit on a recurring cadence (annually or semi-annually is a reasonable benchmark depending on the size of your program), making adjustments based on IER trends arising from other settlements and litigation.
• Engage immediately if IER raises a concern. Be prepared to make adjustments if investigations arise and communicate those adjustments to IER; companies that show up with a defined remediation plan are likely to fare better than those that do not.

Don’t

• Don’t create a separate or harder application path for PERM roles, including internal recordkeeping convenience. Any inconsistency is likely perceived as evidence of intent to discriminate.
• Don’t default to State Workforce Agency mail or paper processes without also offering and directing applicants to an electronic path, unless SWA or DOL rules genuinely require otherwise.
• Don’t let IT or operational changes quietly break a channel used only by one applicant pool. Cloudera’s non-functioning intake inbox shows that a broken system is treated no differently than an intentional barrier.
• Don’t treat PERM as “just a DOL process.” DOL’s good-faith recruitment rule and DOJ’s anti-discrimination statute operate together; as a result, a purely administrative recruiting decision can independently create INA liability.
• Don’t wait to be contacted. The Protecting U.S. Workers Initiative is actively investigating employers today, and settlement values are rising quickly as violations stack.
• Don’t assume a “no admission of wrongdoing” clause means low exposure. Back-pay funds, mandatory policy rewrites, training obligations, and multi-year DOJ monitoring are real and binding regardless of any non-admission language.

Recommended Next Step

Given the pace and reach of current enforcement, we recommend a privileged, attorney-led audit of PERM recruitment channels, application parity, and applicant tracking practices. We are glad to walk your recruiting and immigration compliance teams through what that audit would look like. Please reach out to a member of our team to request support.

The material contained in this post does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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