Towards the end of last year, the U.S. Equal Employment Opportunity Commission (EEOC) issued a new one-page technical assistance document titled “Discrimination Against American Workers Is Against the Law” and updated its national origin discrimination webpage. While summarizing longstanding legal principles, the EEOC’s action takes an additional step in the administration’s pursuit of perceived “anti-American” bias in employment. Employers should view this guidance as a signal that the EEOC intends to increase investigations, outreach, and interagency coordination in the months ahead.
Indeed, multiple public reports confirm that these EEOC investigations are underway, and employers must prepare for the scrutiny we expect to continue to increase between now and the end of 2028.
What Is the EEOC?
The EEOC is responsible for coordinating the federal government’s employment antidiscrimination effort. The EEOC is the federal agency authorized to investigate and litigate against businesses and other private sector employers for violations of federal laws prohibiting employment discrimination. For public sector employers, the EEOC shares jurisdiction with the Department of Justice’s Civil Rights Division.
What Is the Impact of the EEOC’s New Guidance?
The new document and updated webpage emphasize that Title VII of the Civil Rights Act of 1964 includes protecting Americans from anti-American bias. Specifically, the EEOC focuses on three practices that it identifies as “common business reasons” for discriminating against American workers:
- Customer or client preference;
- Lower labor costs (including paying workers off the books or leveraging wage structures tied to certain visa categories); or
- Beliefs that workers from particular national origin groups are inherently more productive or possess a stronger work ethic.
Equally notable is how the EEOC chose to communicate this message. By issuing a consumer-facing document, the agency appears intent on reaching not only employers but also workers, job applicants, and potential whistleblowers. The document closes with a prominent link directing individuals to the EEOC’s charge-filing instructions—a clear signal that the agency expects and encourages workers to initiate complaints themselves.
How Has the Administration Consistently Coordinated?
This trend aligns with broader workforce initiatives already underway, most notably the Department of Labor’s Project Firewall. That initiative focuses on recruitment and hiring practices associated with PERM labor certification, H-1B filings, and third-party placement models. DOL examiners have been paying particular attention to whether employers made genuine efforts to recruit and consider U.S. workers before turning to foreign national sponsorship. In many cases, Project Firewall audits have led to referrals to EEOC or IER when patterns suggest a systemic preference for foreign national talent.
Federal agencies are moving in parallel. The Department of Justice’s Immigrant and Employee Rights Section (IER) has spent the past year broadcasting a near-identical message, emphasizing that job postings, recruiting efforts, and hiring processes cannot express or imply a preference for foreign national candidates. IER has continued to scrutinize employers whose recruiting channels draw disproportionately from foreign-student pipelines or who rely heavily on H-1B or OPT populations without demonstrating that qualified U.S. workers were unavailable. And in recent months, DOJ more broadly has expanded its corporate whistleblower program, which now prioritizes immigration-related violations, including those related to employment. Given the longstanding coordination between EEOC and IER, employers should expect that red flags identified by one agency will be shared with the other.
What Should Employers Do to Address the EEOC’s New Guidance?
In this environment, employers should take proactive steps to mitigate the risk of allegations of discrimination in their hiring practices. First, training is essential. Recruiters, hiring managers, and HR personnel must understand what they can and cannot say about preferences for US citizens or immigration sponsorship of noncitizens, work authorization eligibility for certain roles, and their approaches for outreach to different candidate pools.
Second, consistent, contemporaneous documentation of hiring decisions—grounded in objective criteria—is critical in defending against allegations of bias. Employers should also review their relationships with staffing firms and other third-party vendors, such as electronic I-9 employment eligibility providers, whose practices may create risk and/or liability for the company.
Third, now is also the time to take a close look at job postings and recruiting strategies to ensure they do not inadvertently signal a preference for foreign students or temporary visa holders, like H-1B workers. Employers should also examine whether automated or outsourced recruiting channels filter out U.S. workers at higher rates, even unintentionally. An evaluation of the wages and working conditions for particular roles is also key, ensuring the hiring of foreign workers, for example, is not undercutting the terms and conditions of employment of U.S. workers.
Fourth, a review of green card sponsorship-related processes—particularly those involving advertisements during PERM labor market test processes—must involve assessing the results of applicant screening processes to confirm that qualified U.S. workers received fair consideration and were not disincentivized from applying. During the President’s first term, the Justice Department focused on this, investigating and imposing penalties on multiple large technology companies.
Fifth, employers should prepare for inquiries before they occur. Establishing internal protocols for responding to EEOC, IER, or DOL requests can streamline communication and reduce the risk of inconsistent statements. With whistleblower tools expanding, a single applicant’s complaint can now initiate a federal investigation, making preparation essential to minimize disruptions to businesses.
The EEOC’s new guidance reinforces an enforcement posture that employers should take seriously. In light of increased interagency coordination, expanded whistleblower tools, and heightened scrutiny of hiring and recruitment practices, employers should anticipate closer review of decisions affecting U.S. workers and foreign national employees alike.
Klasko Immigration Law Partners will continue to monitor related developments. Employers with questions about their hiring practices, compliance obligations, or risks under these evolving enforcement priorities should consult experienced immigration and employment counsel to consider proactive compliance strategies.
For questions regarding this alert or assistance, please contact a member of Klasko’s compliance or employment-based immigration team.
The material contained in this alert 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.
© 2025 Klasko Immigration Law Partners, LLP. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Klasko Immigration Law Partners, LLP. For permission, contact info@klaskolaw.com.
