The Justice Department has decided that employers may exclude American workers from job postings aimed at H-1B holders and other non-immigrant visa workers, after Attorney General Todd Blanche declined to put a mid-ranking agency lawyer’s ruling under review. Breitbart News reported the development exclusively on Monday.
The policy traces back to an early-August decision by an Administrative Law Judge within the department’s Office of the Chief Administrative Hearing Officer (OCAHO), the office that handles claims of national-origin discrimination in hiring. The ruling held that “discriminatory advertising does not represent a discrete cause of [legal] action under the INA” — the Immigration and Nationality Act — and that evidence of biased job ads can only be raised as part of a broader case alleging nonselection, recruitment or termination.
Blanche had sixty days to call the decision up for review. He did not, even after 13 House legislators, attorney John Miano and other groups urging stricter enforcement of the rules wrote to him. “The Attorney General has until the middle of this week to decide whether he will review the case,” the lawmakers wrote on October 9. “We certainly hope he will.”
A ’25-year’ setback, one lawyer says
Miano, a lawyer for the group US Tech Workers who has filed a string of suits against discriminatory job postings by Fortune 500 subcontractors, called the outcome a major reversal. “The whole 25 years of prosecuting companies for H1B [-related anti-American job discrimination] is set back 25 years by this,” he said.
With Congress unlikely to step in, Miano argued the only remaining remedy is an expensive appeal to the Sixth Circuit Court of Appeals. He also contended the ruling effectively sidelines American professionals by folding H-1B workers into affirmative-action rules originally written to protect African-Americans, women and other minorities.
The department, in a statement to Breitbart News, said it had reviewed the ALJ’s reasoning along with concerns raised by stakeholders and concluded the decision “was consistent with OCAHO precedent.”
At the same time, officials insisted the department remains aggressive on hiring discrimination. “The Department aggressively targets employers who discriminate against American workers through unlawful hiring practices,” the statement said, pointing to its Protecting U.S. Workers Initiative and what it described as multimillion-dollar settlements with companies including Apple, OpenAI and various staffing and agricultural firms. “These results send an unmistakable message: the DOJ will hold accountable any employer that discriminates against Americans.”
The department also pointed to a $5 million penalty announced Tuesday against grocery firm Instacart for excluding Americans from jobs assigned to temporary visa workers seeking permanent green cards. Assistant Attorney General for Civil Rights Harmeet Dhillon has brought and won a series of cases against major companies accused of sidelining American candidates.
Vance and Blanche have criticized visa hiring
The ruling lands against a backdrop of sharp criticism of the visa system from senior administration figures. Vice President JD Vance said on October 8 that H-1B is supposed to bring in “really the best of the best” for jobs that cannot be filled domestically, but that the program has become “rife with fraud over the last several years, probably the last several decades.”
Vance cited Microsoft as an example, saying the company laid off 6,000 American workers last year while benefiting from 6,300 H-1B visas and nearly 3,000 green cards. “If you do the math, for every worker that Microsoft laid off, they replace that worker with one and a half foreign indentured servants,” he said.
Blanche, speaking at the same event, said employers had for too long used tactics “to protect and, in some cases, prefer foreign workers for all types of job opportunities,” shutting Americans out of their own country’s economy and making it harder for recent graduates and experienced workers alike to get a fair shot and a fair wage.
Yet the administration’s regulatory reforms to curb the visa programs have yet to survive legal challenges funded by companies that rely on visa workers, according to the report.
Chicago jobs board at the center of earlier cases
Miano’s past litigation targeted the Chicago H-1B Connect Coalition, a jobs board that advertised positions to lower-wage H-1B workers while excluding Americans. The board served employers looking to hire visa holders switching away from abusive employers or seeking new jobs after a shutdown. He has won multiple discrimination suits against companies that cooperated with the coalition.
He argued the department’s latest position reflects the influence of Wall Street investors across multiple administrations, a faction he says has blocked meaningful H-1B reform since the program’s creation in 1990.
Miano also pressed the White House to act directly, saying Trump could require companies to show they are not disadvantaging Americans. “Mr. President, do you realize you’re importing more computer workers on H-1B visas every year than you’re creating computer jobs?” he said. “What’s the point of deporting gardeners and then bringing in more computer workers than that we create computer jobs so our kids can’t find work, you’re undermining yourself.”
He added: “Basically, he’s sacrificing the votes of younger workers for short-term big tech money.”
Trump himself acknowledged the political difficulty of the issue on September 30, telling supporters that immigration politics “is the hardest job that I’ve had” because critics complain he is either too tough or too soft. Speaking to business executives and donors, he added, “We have to have the votes.”
Source: www.breitbart.com — https://www.breitbart.com/economy/2026/10/20/exclusive-justice-department-loosens-discrimination-rules-for-h-1b-hiring/