Revisiting Dhillon’s YouTube Interview After the Cloudera Settlement

Harmeet K. Dhillon, the Assistant Attorney General who runs the Justice Department’s Civil Rights Division, laid out in a Sept. 1 interview with commentator Sara Gonzales how her division views the H-1B and PERM programs and where it intends to bring cases. Read again after the Oct. 16 settlement that cost Cloudera $2 million and a two-year ban from the PERM green card program, the conversation turns out to be a close preview of the division’s enforcement, and it offers the clearest public signal of what employers that sponsor foreign workers should expect next.

That signal is scarce. The Labor Department froze PERM processing for Microsoft, Adobe and other employers on Oct. 8, and Bloomberg Law reported that the violations behind those suspensions have not been specified. Dhillon’s remarks are one of the few on-the-record explanations from the official whose division brings the discrimination cases, and they separate three things that public debate tends to blur: PERM recruitment, H-1B hiring, and the staffing chains that place visa workers.

The green card recruitment test, not the H-1B, is where the cases are

Dhillon drew the line herself. PERM, the labor certification step behind most employment-based green cards, requires an employer to show it could not find a qualified U.S. worker, and she said that is where her division was finding the most abuse: openings advertised in places ordinary job seekers never look. She pointed to OpenAI, which had settled four weeks earlier.

The government’s findings in that case match her description. According to the Justice Department’s Aug. 4 announcement, OpenAI kept its PERM openings off its external careers site, required mailed paper applications for those roles alone, and advertised some of them on late-night radio. It agreed to $1.2 million in civil penalties and a $2 million back-pay fund, with training and monitoring, but no bar from the program. Cloudera, the 14th settlement under the department’s Protecting U.S. Workers Initiative to OpenAI’s 13th, paid less: a $1.4 million back-pay fund and $600,000 in penalties over seven jobs whose applicants were directed to an email address that could not receive outside messages. It also lost access to PERM for two years.

The difference is the Labor Department, which joined the Cloudera resolution and controls the program itself. Both cases rest on the Immigration and Nationality Act’s ban on citizenship-status discrimination, 8 U.S.C. 1324b. The escalation in ten weeks was not in the dollar amount but in the remedy, and the government’s own announcement framed the Cloudera terms as a model for future cases, Bloomberg Law reported. A Cloudera spokesperson told Bloomberg Law the company had fixed an email address inadvertently restricted to internal users and denied discriminating in hiring.

For H-1B hiring, a broader theory that courts have not tested

The national-origin argument. Dhillon said correctly that the H-1B program generally does not require an employer to prove no American was available. The exception matters: employers that are H-1B-dependent or have been found to be willful violators must attest that they recruited U.S. workers in good faith, unless the hire earns at least $60,000 or holds a master’s degree, a threshold Congress is now being asked to raise. For everyone else, her route is civil rights law. “American is a national origin,” she said, adding that earlier administrations did not treat anti-American bias as national-origin discrimination and that almost all of her division’s new labor discrimination cases now involve discrimination against Americans. The Equal Employment Opportunity Commission’s Sept. 30 suit against a Texas staffing firm over an “ONLY H-1B” job ad is the first public test of that theory under Title VII. The court has not ruled.

Visa workers as victims. Dhillon, who said she spent 25 years in Silicon Valley before taking office, described chains of staffing intermediaries each taking a cut of a worker’s billing rate, called the arrangement “a form of human trafficking,” and said Congress should reform it. Her claim that H-1B pay can fall below the market rate needs a qualifier: the statute requires the higher of the employer’s actual wage or the prevailing wage, so the problem she describes is noncompliance or low wage levels, not something the law permits. Her concern that workers cannot easily leave an abusive employer also sits awkwardly beside a pending DHS proposal that would remove the 60-day grace period laid-off H-1B workers now have to find a new sponsor.

What the PERM numbers say about why enforcement moved to discrimination law

The Labor Department’s own figures help explain the strategy. From Oct. 1, 2025, through June 30, 2026, its Office of Foreign Labor Certification processed 112,550 PERM applications, certifying 104,028 and denying 3,879, about 3.4 percent by Immigration Analytics’ calculation. Software developers, the job Gonzales cited in the interview, accounted for 23,499 certifications, or 22.6 percent.

The routine PERM review rarely tests recruitment conduct (except when a case is picked up for random audit), and that the government has chosen to police it after the fact through discrimination cases and debarment. The OpenAI and Cloudera cases together covered fewer than 17 positions, set against more than 100,000 certifications in nine months. Their purpose is deterrence: a back-pay fund and a public debarment cost a company far more than the jobs at issue.

The companies she did not name

The remark most worth rereading is one Dhillon made almost in passing: her division was in conciliation with companies she could not identify, and “Fortune 20 companies are doing this.” She said the division’s limit was case volume, not legal authority, and urged private lawyers to bring claims, which 1324b allows individuals to file before the Justice Department’s administrative hearing office. Those private cases are already arriving, with mixed results: a judge dismissed one against Boston Consulting Group for thin facts and let another against Azurity proceed.

Microsoft is a Fortune 20 company now under a PERM freeze, but Dhillon named no one, and the Labor Department suspension and any Justice Department conciliation are separate processes. Microsoft President Brad Smith has called the administration’s abuse claims against the company “completely off base,” Reuters reported. The next signals to watch are whether any large employer accepts Cloudera-style terms with a debarment, whether the Oct. 8 suspensions turn into formal debarment proceedings, and whether a court accepts the Title VII theory in the EEOC case. Each would show whether the playbook Dhillon described in September applies at the top of the market or stops at midsize firms.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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