What is DOJ's Protecting U.S. Workers Initiative?

A DOJ Civil Rights Division enforcement program targeting employers who favor temporary visa holders over U.S. workers during hiring and recruitment, in violation of the INA.

Can an employer challenge a DOJ Civil Rights Division finding instead of settling?

Yes. Section 1324b claims have their own adjudicative track: the case is litigated before an OCAHO administrative law judge, where an employer can raise defenses like no prima facie case, a legitimate nondiscriminatory business reason, untimeliness, or coverage limits. An adverse OCAHO order can be appealed directly to a U.S. Court of Appeals within 60 days.

DOJ Settles with OpenAI for $3.2 Million Over PERM Discrimination: What It Signals for Employer Immigration Compliance

Sep 22

Written By Emily C. Brown Esq.

On August 4, 2026, the Department of Justice’s (DOJ) Civil Rights Division announced a $3.2 million settlement with OpenAI OpCo LLC (OpenAI) and its subsidiary Statsig, Inc., resolving allegations that the companies violated the Immigration and Nationality Act (INA) by discriminating against U.S. workers during the Permanent Labor Certification process. It’s the 13th settlement under DOJ’s Protecting U.S. Workers Initiative since the program relaunched in 2025, further evidence of the shift toward compliance enforcement in corporate immigration and the need for employers to keep visa-specific program policies tight.

What Is the PERM Program?

PERM (Program Electronic Review Management) is the Department of Labor process employers use to sponsor a foreign worker for a green card through employment. Before an employer can move forward, DOL requires proof that no qualified, willing, and available U.S. worker exists for the position — the labor certification process. That means a defined recruitment sequence: a job order with the state workforce agency, two Sunday print ads, and additional recruitment steps for professional roles, all conducted at a DOL-certified prevailing wage and run in good faith, not just to satisfy a checklist. If no qualified U.S. worker applies, the employer files Form ETA-9089 with DOL; if certified, that labor certification is the first step toward the worker’s green card, typically followed by an I-140 petition and then adjustment of status or consular processing. The program takes its name from the electronic filing system DOL introduced in 2005 to replace the old paper-based process.

How did the OpenAI PERM Investigation Start?

The investigation began when four individual workers or applicants filed complaints with DOJ’s Immigrant and Employee Rights Section (IER) alleging they were shut out of PERM positions by a recruitment process that discriminated against them based on citizenship status. DOJ added a fifth, self-initiated investigation on top of those charges, because IER doesn’t need a complaint to open a matter; it can act on its own where enforcement priorities point that way. After reviewing OpenAI’s PERM recruitment process, IER alleged that while the recruiting steps existed on paper, they were structured to minimize actual U.S. applicant interest.

DOJ’s findings described a recruiting pattern that diverged from OpenAI’s normal hiring process in a few critical ways:

PERM positions weren’t posted on the external careers site, even though that was standard for every other job opening
PERM applicants had to mail paper applications, while every other role accepted electronic applications
Some PERM positions were advertised in ways unlikely to reach many U.S. applicants, including late-night radio spots

Notably, fewer than ten positions were at issue, but the settlement reached $3.2 million. DOJ said the resolution amount reflects the harm to U.S. workers when they are shut out of applying for lucrative technology jobs — a small number of PERM slots recruited this way can still trigger a seven-figure resolution.

What the Settlement Required

Under the agreement, OpenAI and Statsig must:

Pay $1.2 million in civil penalties to the United States
Fund a $2 million back-pay pool for affected workers
Post all future PERM positions on their public careers site, consistent with every other role
Accept electronic applications for PERM positions
Enter PERM applicants into the same applicant tracking system used for the rest of hiring
Train relevant staff on the INA’s anti-discrimination requirements
Submit to DOJ compliance monitoring and reporting for three years

OpenAI disputed DOJ’s findings but agreed to settle to resolve the matter and continue its PERM program.

Settlement Isn’t the Only Option

Settlement is often the default response to an IER finding, but it isn’t the only path. Congress gave § 1324b claims their own adjudicative track: IER’s Special Counsel — or the charging party directly, if IER doesn’t act within 120 days — litigates the case before an OCAHO administrative law judge, with real discovery and real defenses, including no prima facie case, a legitimate nondiscriminatory business reason for the practice, untimeliness, or coverage limits that exclude the employer or the claim entirely. If the OCAHO order comes out against the employer, that isn’t the end — a party can seek direct review in the U.S. Court of Appeals within 60 days of the final order under § 1324b(i), where the ALJ’s findings are tested against a substantial-evidence standard. Evaluating this path takes counsel who can actually litigate it, not just negotiate a consent agreement, and the earlier that evaluation happens, the more leverage an employer has.

What this Signals for Employer Immigration Compliance: Beyond PERM

OpenAI’s case is the 13th settlement since DOJ relaunched the Protecting U.S. Workers Initiative in 2025, a program that isn’t new. It was created during the first Trump administration in 2017, deprioritized under the Biden administration, and revived in 2025 specifically to target employers who favor visa holders over U.S. workers. Since relaunch, DOJ has settled a case roughly every four to five weeks. That cadence signals a program with staying power, not a single high-profile enforcement action against one AI company.

The initiative’s scope is also broader than PERM. Of the 13 settlements since relaunch, OpenAI is the only one built on a PERM fact pattern. Several involve job postings that explicitly restricted hiring to H-1B visa holders — the more obvious version of the same violation. IER also settles “unfair documentary practices” cases outside the initiative, where employers demanded different or additional documents from non-U.S. citizens during the I-9 process, based on their citizenship status. That’s not a separate legal framework; it’s the same statute IER used against OpenAI (INA § 274b) applied to a process nearly every employer runs, not just the ones sponsoring green cards.

That’s the real signal in the OpenAI settlement: it’s one data point in a sustained, multi-front enforcement program, and the I-9 process (not PERM recruiting) is where most employers actually carry this exposure.

Key Takeaways

DOJ’s Civil Rights Division (IER) enforces citizenship-status discrimination under the INA
IER can act on worker charges, self-initiated investigations, or both
Penalties aren’t scaled to headcount; a handful of affected positions produced a multimillion-dollar resolution here
Settlement isn’t the only response to an IER finding — § 1324b claims proceed before OCAHO, with real defenses and a direct path to circuit-court review
This is DOJ’s 13th Protecting U.S. Workers Initiative settlement since 2025, involving the PERM program, the H-2A visa program, and job postings favoring visa holders; the pace signals a sustained enforcement priority, not a one-off

How Elevate Justice Supports Employers Facing IER Scrutiny

Elevate Justice U.S. Immigration Law provides recruitment and compliance review for employers running PERM programs: an audit of your recruitment practices against IER’s good-faith standard, a comparison of your PERM process to your standard hiring pipeline to flag the kind of divergence that triggered the OpenAI case, and a written risk assessment before a charge — not after one.

If you’re already facing an IER investigation or charge (related to PERM or another immigration matter), we evaluate whether settlement or contested litigation before OCAHO better protects your position, grounded in the actual adjudicative process and your specific facts.

Emily C. Brown, Esq. is a former federal attorney with litigation experience at ICE’s Office of the Principal Legal Advisor, including complex federal cases, and compliance experience at the U.S. Department of Labor. Because the practice is fully virtual, employers in any market get attorney-led review on their timeline — no local office required.

Facing an IER charge or want to get ahead of one? Book a 30-minute attorney consultation.

This blog post is for informational purposes only and does not constitute legal advice. Immigration policies change frequently. Consult with a qualified immigration attorney for guidance specific to your situation.

Emily C. Brown Esq.