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Ask the Headhunter: How these rogue job ads for foreign workers sneak past the law

It is illegal for U.S. employers to advertise jobs for foreign workers only, but some companies appear to be doing that today – whether they know it or not.

Employers today hire at arm’s length. They contract workers from third-party consulting or contracting firms. And many of those consulting firms in turn use job posting services like ZipRecruiter to recruit through “affiliates.”

With so many layers of recruiting, it’s easy to see how things can go wrong.

In Inc. magazine, HR expert Suzanne Lucas highlighted one such example. ZipRecruiter advertised a job for Iowa-based American Technology Consulting, which specializes in IT staffing services. What was problematic about the ad? The title read “Java Developer – (H1B Only).”

As you may know, H-1B is a U.S. work visa for foreign workers in specialty occupations like IT. The purpose of the program is to help employers, who sponsor the visa applicants, to find the skilled workers that they can’t find in the U.S. And while H-1B regulations do not require companies to recruit American workers first, it remains illegal to recruit only foreign workers.

WATCH: How could the H-1B visa program for foreign workers be improved?

“In case you’re wondering what the problem is with the ad, it’s that it violates one and possibly two laws,” Lucas writes.

An employer is not allowed to post jobs that exclude U.S. citizens, says Lucas, and cites an employment attorney who “verified that, as written the ad violates the law against national origin discrimination.”

Lucas’s discovery led me to do some investigating of my own.

Who violated the law?

In an email exchange, American Technology Consulting president Tara Jose explained to me that some unnamed third party posted the ad to recruit for the position on ZipRecruiter.

“Our business model for recruiting includes help from vendors, through our affiliate program, who promote positions we are trying to fill,” said Jose. “As you saw on Inc.com, one of those vendors posted an ad that said H1-B Only.”

If you’re confused, here’s how the setup works: A company somewhere in the U.S. wanted a Java Developer. It contracted with American Technology Consulting, which would hire and then place the developer at the company. American Technology Consulting contracted with an affiliate whose job is to recruit the developer. And the affiliate in turn paid ZipRecruiter to advertise the job.

You’re probably still confused! This is a convoluted way to recruit and hire that, as you can see, involves multiple middlemen.

Jose said it wasn’t American Technology Consulting’s fault; it was an affiliate’s. She said American Technology Consulting demanded that the ad be removed and stated that, “we are committed to being inclusive for any and all positions.”

WATCH: Tech industry confronts new visa guidelines

Jose would not name which of the affiliates was responsible for posting the ad on ZipRecruiter under American Technology Consulting’s name. “While I certainly understand why you would like to know who the vendor is that created and posted the ad,” said Jose, “we are not comfortable sharing their name.”

American Technology Consulting advertises “immigration services,” “H1B visa process,” and “green card process” on its website, suggesting that American Technology Consulting is familiar with the law on these topics.

Is this a mistake?

Was that job posting an anomaly? An accident? I looked for more such postings on ZipRecruiter, and within seconds, I had multiple job postings in front of me advertising “only H1-B.”

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Why was Zip Recruiter advertising so many ads for only H-1B applicants?

I opened a chat with ZipRecruiter to find out. Here’s what they told me.

Online chat with ZipRecruiter

Jason said ZipRecruiter accepted job ads for H-1B jobs. When the chat with Jason timed out, I asked another ZipRecruiter employee, Taylor, if I could post jobs “For H1-B Only” or “foreign applicants only.” “Yes,” Taylor replied.

I could have ended the chat there, but I kept asking the question in different ways. Finally, I was told it was up to me to make sure my job posting complied with “OFCCP [Office of Federal Contract Compliance Programs] and EEOC [Equal Employment Opportunity Commission] regulations.”

Judging from the ads above, ZipRecruiter itself clearly doesn’t make sure they comply.

Perhaps ZipRecruiter’s personnel don’t understand the law or the company’s policies, but if ZipRecruiter does not ensure the ads comply with federal regulations and American Technology Consulting does not – who does?

What’s sophisticated about the employment industry is all the layers of actors.

Is this hiring at arm’s length illegal? What value does it bring?

A company wants to hire Java developers on the cheap. As Lucas points out, it’s illegal to misuse the H-1B visa program to hire foreign labor cheaper than American labor. But there are ways to post an illegal “H1-B Only” ad on ZipRecruiter. Of course, ZipRecruiter’s written policy says all ads must follow the law.

How many arm’s lengths from the long arm of the law are we now? Are American employers using services that are largely unregulated to manipulate the job market?

State and federal legislatures seem to tolerate a long chain of “contracting” relationships that seem to add no value to America’s employment system. How many middlemen can collect a fee to put you – or a foreign worker — in a job working for someone other than who signs your paycheck?

This tawdry chain of middlemen seems to be sucking value out of the employment system and the economy — while government seems to look the other way.

Notable job-board companies that trade in key words, profiles, resumes and job postings are the front-facing businesses that are highly admired by a stock market that doesn’t care who’s getting a job, who they actually “work” for, where they came from, and who’s getting cheated by salaries that are manipulated in an international game of “how low can you go?”

Why would companies want to hire H-1B workers? There are companies who simply can’t find the talent they need in the U.S. and turn to foreign workers. But critics say many businesses use H-1B to save money by paying foreign workers less – which in turn, brings down pay across the board. (At Bloomberg, Joshua Brustein explains how the impact on pay is dramatic in “The Secret Way Silicon Valley Uses the H-1B Program.”)

Who needs more regulating?

ZipRecruiter says job postings must follow the law. ZipRecruiter workers said you can post jobs for foreign applicants only. There are “H1-B Only” ads on ZipRecruiter for a reason. Did somebody approve it? Who? Nobody knows.

Employers and HR execs who let an industry of digital job boards sell out American job hunters need more regulating. How far from federal employment-law violations can employers remove themselves?

Dear Readers: What do you think about employers advertising jobs for H-1B applicants only? What do we need to do to fix this?

PBS NewsHour reached out to ZipRecruiter for comment. Here’s what ZipRecruiter’s COO, Jeff Zwelling, said:

At ZipRecruiter, we take great pride in helping people find meaningful work. With our rapidly expanding user base, geographic reach, and cutting edge technology, we provide employers an effective and efficient means to advertise their job openings and job seekers unprecedented access to locate career opportunities.

In our role as a provider of interactive online services, and particularly in light of the volume of content distributed through our service, we cannot practically control or take responsibility for the content that users publish on our site. Nevertheless, we take very seriously any issues relating to our users’ safety and compliance with law. To that end, we are continuously looking to improve our processes for removing inappropriate materials through both automated and manual means, including by incorporating feedback we receive from our customers, users, and the community at large. We appreciate the issue regarding the H-1B postings being brought to our attention and are taking this opportunity to improve our training for customer service representatives and others on this topic.

We urge job seekers to report any suspicious activity or other problematic content to our Trust and Safety team at the dedicated email address trustandsafety@ziprecruiter.com.

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