On October 20, 2026, the U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) announced a joint $5 million settlement with Maplebear Inc., doing business as Instacart. The agreement resolves allegations that the company discriminated against U.S. workers during recruitment for permanent labor certification, known as PERM, by favoring applicants who held temporary employment visas.
The case is a significant warning for employers sponsoring an H-1B or L-1 worker for an employment-based green card. PERM recruitment must be genuine and open to U.S. workers. A separate, more burdensome process for U.S. applicants can create serious legal risk, even when the employer completes the recruitment steps required by the Department of Labor (DOL).
What happened in the Instacart PERM case?
According to the agencies’ joint announcement, Instacart required applicants for positions advertised as part of PERM recruitment to submit applications by physical mail. The company’s ordinary recruitment process allowed applicants to apply electronically.
The DOJ said that many U.S. workers who applied were not considered in a timely manner. Its investigation found evidence that the practice intentionally discriminated by preferring workers with temporary employment visas. The EEOC reported similar evidence under Title VII.
The settlement terms include:
- A fund of up to $4 million for applicants and deterred applicants affected from December 2023 through February 2026. A claims administrator will determine eligibility for compensation, including potential back pay and compensatory damages.
- A $1 million civil penalty payable to the United States.
- A requirement that Instacart post PERM positions on its public career website and accept electronic applications.
- Revised PERM policies, annual anti-discrimination training for personnel, and monitoring and compliance reporting.
The allegations were resolved through a settlement; the announcement does not describe a court finding of liability. The DOJ provides a summary of the settlement terms.
Why can a mail-only application rule be discriminatory?
A paper application is not inherently unlawful. The concern is whether an employer imposes an unnecessary hurdle on U.S. workers in a PERM recruitment process. Particularly when the employer uses a simpler, faster method for other applicants.
A mail-only rule can create added time, cost, and uncertainty. Applicants may be less likely to apply, and mailed materials may not reach decision-makers promptly. When the employer’s regular recruitment process accepts online applications, requiring U.S. applicants to use a slower method can undermine a meaningful opportunity to apply.
Federal law prohibits discrimination based on citizenship status in hiring, firing, and recruiting or referring for a fee under the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b. The DOJ’s Immigrant and Employee Rights Section (IER) generally enforces this provision for employers with four to 14 employees. Title VII prohibits national origin discrimination, including discrimination against American workers, under 42 U.S.C. § 2000e-2. The EEOC generally has jurisdiction over employers with 15 or more employees.
The EEOC’s national origin discrimination guidance specifically identifies making it more difficult for U.S. workers to apply than for H-1B workers during PERM recruitment as an example of potentially discriminatory treatment.
How PERM recruitment and anti-discrimination rules intersect
PERM allows an employer to seek labor certification for a foreign national after conducting good-faith recruitment for U.S. workers. DOL’s rules set out required recruitment steps and documentation. For example, 20 C.F.R. § 656.17 requires employers filing for professional occupations to complete a 30-day job order with the State Workforce Agency, two Sunday print advertisements, and three additional recruitment steps from a regulatory list, all within 180 days before filing the ETA Form 9089. The employer must also prepare a signed recruitment report describing the recruitment steps, the results, and the lawful job-related reasons for rejecting any U.S. workers. The regulation expressly requires advertisements to direct applicants to report or send resumes to the employer and to describe the vacancy specifically enough to apprise U.S. workers of the job opportunity.
Those requirements do not authorize employers to add discriminatory hurdles. The recruitment process must give U.S. workers a fair opportunity to learn about and apply for the job. The employer must also maintain a PERM audit file that accurately reflects the recruitment conducted, applications received, and lawful job-related reasons for rejection. Records should not describe a process that differs from the one applicants actually encountered.
Employers should distinguish lawful DOL recruitment requirements from practices that unnecessarily restrict access. An employer may need to use designated advertisements, job orders, and other recruitment steps. That does not make it lawful to use different application methods for different groups or to limit, segregate, or classify applicants in a way that tends to deprive U.S. workers of employment opportunities.
PERM recruitment compliance checklist for employers
Employers sponsoring H-1B or L-1 workers should review their PERM recruitment procedures now. A business immigration attorney can help assess whether the employer’s practices meet both DOL requirements and anti-discrimination obligations.
- Use consistent application methods. Make application instructions and submission channels consistent for all applicants. Do not require U.S. workers to mail applications if other candidates can apply electronically.
- Review job postings. Check internal and third-party postings for language that limits applicants by citizenship, visa status, or national origin. Unless legally required, avoid phrases such as “H-1Bs Only,” “Must have a green card,” or “Native English Speakers only.” IER provides recruiting and hiring best practices.
- Keep complete, accurate records. Preserve the advertisements, application instructions, dates, applicant materials, recruitment report, and job-related reasons for decisions. Confirm that the PERM audit file reflects the process actually used.
- Train HR and recruiters. Provide recurring guidance on INA and Title VII obligations. Ensure staff understand that an applicant’s temporary visa status is not a basis for giving another applicant a less accessible process.
- Monitor vendors and third-party recruiters. Set clear expectations for staffing firms, job boards, and other service providers. Review the content and application processes they manage on the employer’s behalf.
- Separate recruiting from Form I-9 procedures. Work-authorization verification is distinct from PERM recruitment. For I-9 compliance, do not request specific documents, demand more or different documents, or reject valid documents because of citizenship status or national origin. Avoid unnecessary requirements, such as requiring a Social Security number to submit an application.
These steps are relevant whether a company is pursuing its first PERM labor certification or managing a larger employment-based green card program. Compliance with visa petition rules does not replace the obligation to recruit fairly.
What workers and applicants should know
Individuals who applied, or believe they were deterred from applying, for an affected Instacart PERM position between December 2023 and February 2026 may contact the agencies at Instacart@eeoc.gov. The settlement calls for a claims administrator to determine eligibility and administer the fund. Contacting the agencies does not itself establish eligibility or guarantee compensation.
Workers with questions about possible immigration-related hiring discrimination can also call the DOJ IER worker hotline at 1-800-255-7688. Employers may contact the IER employer hotline at 1-800-255-8155. The hotline information is available on the IER website.
A broader federal enforcement trend
The DOJ described the Instacart agreement as its fifteenth settlement since relaunching the Protecting U.S. Workers Initiative in 2025. The department also reported that, since the initiative’s original launch during the first Trump administration, it has secured more than $34 million in back pay and more than $16 million in civil penalties.
The EEOC stated that the settlement is its fourth public settlement involving alleged anti-American national origin discrimination since 2025, with five related federal lawsuits pending. The agency linked this work to Project Firewall. Together, these actions signal continued scrutiny of recruitment systems that favor temporary visa holders over U.S. workers.
Employers should not treat PERM recruitment as a paperwork exercise. A work visa for foreign employees may lead to a permanent residence sponsorship, but the recruitment process must remain fair, consistent, and well documented.
Blasingame Law LLC advises employers on PERM labor certification, employment-based green cards, and workforce compliance as part of its business immigration services in Colorado Springs. With more than 30 years of experience on both the corporate and private-practice sides of immigration law, the firm helps companies of all sizes build compliant recruitment and sponsorship programs, from temporary work visas for foreign employees to PERM audit files, I-9 compliance systems, and internal audits.
If you are sponsoring an H-1B or L-1 worker for an employment-based green card, responding to a DOL PERM audit, or reviewing your recruitment practices after this settlement, contact Blasingame Law LLC at 719-521-2115 or visit the firm’s office at 2930 N. Academy Blvd, Ste 204, Colorado Springs, CO 80917 to schedule a consultation. The firm serves employers throughout Colorado and across the United States.
This article is for informational purposes only and does not constitute legal advice. Immigration and employment matters depend on specific facts. Consult qualified counsel about your circumstances. Facts are current as of October 21, 2026.
