What the OpenAI PERM Settlement Means for Employers

The U.S. Department of Justice (DOJ) has reached a $3.2 million settlement with OpenAI and its subsidiary, Statsig, over allegations that the companies discriminated against U.S. workers during the permanent labor certification (PERM) process.

While the case involved fewer than 10 PERM positions, the settlement included $1.2 million in civil penalties, a $2 million back-pay fund, and three years of DOJ monitoring. The message from the government is clear: the size of a PERM program doesn't determine enforcement risk.

For employers sponsoring employment-based green cards, the settlement serves as another reminder that PERM recruitment should closely resemble how the company normally recruits for comparable positions.

What did the DOJ allege?

According to the DOJ, OpenAI's PERM recruitment practices differed from its standard hiring process in several important ways that discouraged U.S. workers from applying.

The department alleged that the company:

• Did not post PERM positions on its public careers website, despite doing so for other roles.
• Required applicants to submit paper applications by mail instead of allowing electronic applications.
• Used recruitment methods that made it less likely qualified U.S. workers would learn about or apply for the positions, including late-night radio advertisements.

The DOJ concluded that these practices favored temporary visa holders over qualified U.S. workers, violating the anti-discrimination provisions of the Immigration and Nationality Act (INA).

As part of the settlement, OpenAI agreed to:

• Pay $3.2 million in penalties and back pay.
• Post PERM jobs on its public careers site.
• Accept electronic applications.
• Revise its recruitment policies.
• Train employees on the INA's anti-discrimination requirements.
• Undergo three years of government monitoring.

Why this case matters

The settlement is notable because of how few jobs were involved.

Previous high-profile DOJ enforcement actions against companies including Facebook and Apple involved thousands of PERM positions or large-scale recruiting programs. OpenAI's case involved fewer than ten positions, yet still resulted in multimillion-dollar penalties and extensive compliance obligations.

That reinforces an important point for employers: a small PERM program is not low-risk.

The bigger lesson for employers

The Department of Labor's PERM regulations have not fundamentally changed. Employers must still follow the existing recruitment requirements before sponsoring a worker for permanent residence.

But recent DOJ enforcement actions show that simply complying with the minimum regulatory requirements may not be enough if the overall recruitment process looks materially different from how the company hires for comparable, non-sponsored roles.

Current government guidance does not require PERM recruitment to be identical to standard recruiting. However, immigration attorneys increasingly recommend that employers design PERM recruitment to mimic their normal hiring practices as closely as possible, while still satisfying PERM's regulatory requirements.

For HR and talent acquisition teams, a useful question is no longer simply:

"Did we satisfy the PERM recruitment requirements?"

Instead, employers should also ask:

"How similar does this recruitment process look to how we would hire for the same role if there were no green card sponsorship involved?"

Differences such as where jobs are advertised, how candidates apply, how applications are reviewed, and how recruiting is conducted may all receive greater scrutiny during enforcement investigations.

What employers should do now

Employers that sponsor workers through PERM should consider reviewing their recruitment processes with experienced immigration counsel.

Questions worth discussing include:

• Does our PERM recruitment closely resemble our standard recruiting practices?
• Are we advertising PERM positions through the same channels we typically use?
• Are applicants able to apply through the same process as other candidates?
• Can we clearly explain any differences between PERM recruitment and our normal hiring process?

A proactive review may help reduce compliance risk while ensuring the company continues to meet both Department of Labor and Department of Justice expectations.

Companies with active or planned PERM programs should work closely with experienced immigration counsel to ensure their recruitment processes remain compliant as enforcement priorities continue to evolve.

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