| ▲ | pandaman 4 days ago |
| Can you expand how exactly this particular problem (advertising jobs for PERM to comply with the law yet making sure that no applications will be received) can be fixed with a different order of issuing H-1B visas? PERM has nothing to do with H-1B, it's a part of the employment-based immigration process. The reason companies do this shit is because they claim to the US that there are no willing and able citizens or permanent residents for a commodity job such as "front end" or "project management". I.e. committing fraud. |
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| ▲ | darth_avocado 4 days ago | parent | next [-] |
| This keeps coming up every so often and most commenters on HN are completely ignorant of how the immigration system works, but have strong opinions about it, therefore it seems that everything is nefarious. The real problem here is that the way the current system is set up, you have to prove that there are no citizens available for a position by listing a job and interviewing candidates. The problem with that is that you will never be able to prove that by this method. Say you have 1000 jobs for a specific role in the economy and 700 US citizens qualified to do that job and are already employed. The minute you try to file PERM for the 1 foreign national, if you list the job out, the chances of at least 1 person applying out of the 700 are very high because, you know, people change jobs. This puts companies and immigrants in a very difficult position because you literally cannot prove the shortage at an industry level on your own using this method. So they just have to resort to working within the laws to make it work. This all would be completely unnecessary if congress fixes the immigration laws and asks BLS to setup market tests that are data driven to establish high demand roles. |
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| ▲ | pandaman 4 days ago | parent | next [-] | | I am not sure if your comment is directed at me but I immigrated to the US. In my case there were probably no more than 1000 people in the whole world willing and able to do my job. It was advertised in the industry job boards along with required by law newspapers. Very few people applied and none of them had been a US citizen or LPR. This is what EB immigration is for. You are welcome to lobby for another EB category based on data and tests, but you should not be allowed to commit fraud in lieu of such a category in the meantime. | | |
| ▲ | darth_avocado 4 days ago | parent [-] | | EB system is pretty broad. If you really were in a position that only 1000 people in the world were able to do your job, you should’ve applied through EB1, which is designed for such people and also does not require the PERM process and therefore the job listings. EB2 and EB3 are designed for labor gaps in the industry which isn’t the same as extraordinary talent such as yours, and requires the PERM process. EB3 in fact also allows completely unskilled workers to file for permanent residency. Like I explained in the parent comment, the congress put a system to evaluate labor gaps, which is flawed. Following the rules set up by the system isn’t fraud. | | |
| ▲ | pandaman 4 days ago | parent [-] | | >you should’ve applied through EB1 Why? If you know as much as you claim about immigration you should know that any EB1 application will dwarf any EB2 application in amount of work and documentation needed. Also, having rare skillset is not enough to get EB1, as you also might know. You need to meet a set of requirements, none of if which has anything to do with rarity of the skillset. | | |
| ▲ | darth_avocado 4 days ago | parent [-] | | My comment was in response to your claim that EB system was created for people with rare skills, which it clearly isn’t. You were in a job that only 1000 people were able to do, you being one of them. And yet you suggested that EB1 would more laborious and not fit for you. > You may be eligible for an employment-based, first-preference visa if you are an alien of extraordinary ability, are an outstanding professor or researcher, or are a certain multinational executive or manager. Yet you went for EB2, which is designed for a different set of immigrants where the proof of exceptional ability is a lot more lax > You may be eligible for an employment-based, second preference visa if you are a member of the professions holding an advanced degree or its equivalent, or a person who has exceptional ability. And you’re concerned about gaming the system? And you’re also claiming that EB system was designed to work for exactly the scenario that you fit? | | |
| ▲ | pandaman 4 days ago | parent [-] | | As I said, EB-1 does not require rare skills. PERM based EB-2 and 3, though, require that there are no US workers with such skills available so it's highly correlated with skill's rarity. So why and where would I say that the entire EB system is created for people with rare skills? >> You may be eligible for an employment-based, first-preference visa if you are an alien of extraordinary ability, are an outstanding professor or researcher, or are a certain multinational executive or manager. Yep, and I am none of this. >Yet you went for EB2, which is designed for a different set of immigrants where the proof of exceptional ability is a lot more lax Yep, because EB2 does not require any exceptional ability, just the lack of a US worker available, willing, and able to do the job and a master's degree. | | |
| ▲ | bubblethink 4 days ago | parent [-] | | The lack is established by a good faith recruitment process, not an exhaustive search. This is intentionally vague because it's a non-sensical requirement that is hard to prove one way or the other and was only added as a political compromise. The company is free to tailor the minimum requirements to its liking. Recall that this is a free capitalistic country. So you can establish that you can't fill the req. locally and hence are hiring a foreigner. The reason I'm pointing this out is because you have picked some type of textual or literal interpretation of things ("this is what EB is for"), and companies have lawyers who are good at following the text. | | |
| ▲ | pandaman 4 days ago | parent [-] | | The company is free to tailor the minimum requirements to its liking however it must be able to persuade the government that the job cannot be done without these requirements and a foreigner meets them. If you could just require a Nobel Prize in Physics and 50 years of experience for your PM or JS-jockey job then we would not be seeing articles like this. So I don't see why would you be pointing it out. >and companies have lawyers who are good at following the text Apparently not very good lawyers at Apple: https://www.justice.gov/d9/2023-11/ier-apple_settlement_agre... Or Meta: https://www.justice.gov/archives/opa/pr/justice-labor-depart... Just a couple of recent high-profile busts. The problem is not "good lawyers" but the fact that the only punishment for breaking the law is a pittance of a settlement. | | |
| ▲ | bubblethink 4 days ago | parent [-] | | The "busts" are more theater than anything else. The DOJ also sued companies for not hiring enough immigrants (https://www.justice.gov/archives/opa/pr/justice-department-s...) . >The problem is not "good lawyers" but the fact that the only punishment for breaking the law is a pittance of a settlement. That's how settlements go. The government gets to do its theater, the constituents believe that the government is fighting for them, and companies write this off as the cost of doing business. | | |
| ▲ | pandaman 4 days ago | parent [-] | | It doesn't matter how you evaluate these busts, what matters is that they contradict your claim. | | |
| ▲ | bubblethink 4 days ago | parent [-] | | I don't see the contradiction here. The game is as follows: Company has to make a good faith recruitment effort. Not an exhaustive search, not beyond reasonable doubt. Just good faith which follows the preponderance of evidence standard. This is by design. The government doesn't believe that it can win on the merits, and hence they settle. The settlement gives everyone what they want. | | |
| ▲ | pandaman 4 days ago | parent [-] | | > Company has to make a good faith recruitment effort. Yes. And as the topical article and countless other ones state - they don't. They actively obfuscate their job openings so they do know they act against the law. And it's so easy to observe that their "good lawyers" cannot help here. >The government doesn't believe that it can win on the merits, and hence they settle. That's just, like, your opinion, dude. | | |
| ▲ | bubblethink 4 days ago | parent [-] | | >That's just, like, your opinion, dude. That's the official opinion of the government, the judiciary, and the defendants. A settlement is not admission of guilt - the opposite actually. What are we even debating here ? > "good lawyers" cannot help here A settlement for a pittance, as you said, is the mark of a good lawyer. | | |
| ▲ | pandaman 3 days ago | parent [-] | | >That's the official opinion of the government, the judiciary, and the defendants. If it has been an official opinion it would have been published and you had a link to it, would not you? Settlement is not an admission of guilt nor is it admission that the case can't be won on merit. >A settlement for a pittance, as you said, is the mark of a good lawyer. Different lawyer handle DOJ prosecution and immigration (immigration lawyers are usually not even members of BAR). The government settles this kind of cases because of politics, not merit. If there had been a modicum of will to go after lawbreakers, these cases would try themselves - tons of witnesses, tons of evidence zero traces of "good faith". | | |
| ▲ | bubblethink 3 days ago | parent [-] | | > The government settles this kind of cases because of politics, not merit. The government also files these cases in the first place because of politics, not merit. See my point about theater earlier. >If there had been a modicum of will to go after lawbreakers, these cases would try themselves - tons of witnesses, tons of evidence zero traces of "good faith". That's just like, your opinion, dude. | | |
| ▲ | pandaman 3 days ago | parent [-] | | >The government also files these cases in the first place because of politics, not merit. See my point about theater earlier. Yeah, a completely different case by a different organization means this case is also political... I don't really know what to say at this point. You seem to be arguing on random tangents without touching the issue of this HN item: companies obfuscating job adverts for the positions involved in PERM. For all I know you might not even know what does "good faith" mean and truly think it's a good faith behavior so you are more interested in discussing random stuff. I am sorry that I am not. | | |
| ▲ | bubblethink 3 days ago | parent | next [-] | | > different case by a different organization means this case is also political. It's the same issue - the DOJ is going after companies and their ads. In SpaceX's case, the ads said citizen/LPR only due to export control, and DOJ got mad that it would exclude asylees and refugees for some of these positions which may not actually have export control requirements. Your complaint is also about ads and whether they are in print media or online or obfuscated etc. If you think that ads in print media violate the law, you need to prove that in a court of law. Note that the law explicitly requires ads in Sunday newspapers, whereas online ads are not mandatory. There is a check list of what is and is not required, and the lawyers are following the text (https://www.law.cornell.edu/cfr/text/20/656.17). The government doesn't think that there is positive EV in taking it to trial, and hence settles. You, as an individual, can still pursue a civil suit if you are injured. >For all I know you might not even know what does "good faith" mean There are thousands of bogus laws in the books and the government is not your friend. Good faith in this context means doing the minimal amount of work needed to comply with the law. Innocent until proven guilty, and the government has the burden of proof. This is how I view all interactions with the state. | |
| ▲ | 3 days ago | parent | prev [-] | | [deleted] |
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| ▲ | mjevans 4 days ago | parent | prev | next [-] | | TL;DR I don't want to compete with under-priced outsourced labor. I gladly accept peers and betters who expand the market by bringing the best and the brightest to the same national team. ~ I'm all for immigration reform in ways that empower the workers. Want to bring in the best talent from elsewhere? Fine, Make sure they cost the company MORE than you'd pay a US worker, with the government getting the excess as a tax on hiring non-local labor. That worker should also be either a guest worker OR on a pathway to citizenship at their own discretion. | | |
| ▲ | darth_avocado 4 days ago | parent [-] | | The job adverts that are being talked about are part of the PERM process that is required for the “pathway to citizenship” for workers that are already here for an extended period of time. What is also part of the process, is the requirement that you pay more than the median wages. Undercutting wages will get this petition denied and the process itself costs thousands of dollars on top of the thousands of dollars it takes to file for the underlying visa. Again, the immigration system doesn’t work as you think it does. Yes there are abuses and those need to be addressed and I’m fully onboard with reforms that fix it. But the first step would be to understand the system and how it works. | | |
| ▲ | mjevans 4 days ago | parent [-] | | I'd rather they cost like 4X the median worker's wage, with at least half of that collected as taxes by the government. It should be a notable cost, and the worker needs to be making a premium for it to be a rush on immigration. Further note, this is to also encourage more _entry level_ jobs for local workers and train up citizens to become more highly skilled workers. |
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| ▲ | simianwords 4 days ago | parent | prev [-] | | You have highlighted the problem I was not able to articulate. This kind of requirement “open the job to local candidates and only if no one exists will we allow you to hire from outside” exists in multiple places. It exists for internal candidates - often companies are encouraged to fill vacancies by first allowing internal candidates to apply. Obviously this creates a cascading effect where a new role opens up in the candidates old position once they fill up the new one. At some point they just need to hire externally or we will be perpetually filling up vacancies. I wonder how every company managed to understand the cascading effect and just hire externally instead. |
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| ▲ | yunyu 4 days ago | parent | prev [-] |
| Prevents infosys/wipro slop from overwhelming the system, and filters down the incoming roles to only those that can't be filled by a US citizen (i.e. specialist technical jobs, top engineers commanding $500k/yr) |
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| ▲ | pandaman 4 days ago | parent [-] | | It's not just Infosys doing PERM fraud, around 2020 Meta had been barred from filing PERM due to overwhelming fraud. And are there really 85K unique and impossible to find in the US individuals every year? If these exist they will take a small fraction of H-1B allocation and the rest will go to the fresh grads, as it's now. | | |
| ▲ | lovich 4 days ago | parent [-] | | I’d be fine, as a citizen competing against migrants for jobs, if h1bs were structured so that they A: were the top end pay, so they pushed the pay scale up B: were uncoupled from employment. A company could pay the cost to let someone enter, but that person should be able to jump jobs day 0. I’m not suggesting the specific implementation but I feel like if those two guiding directives were kept, both society and the individual workers would benefit from brain draining the rest of the planet while simultaneously pushing worker comp higher. Has anyone suggested a significant change to the h1b system like this beyond just a close it all/open it all binary? | | |
| ▲ | pandaman 4 days ago | parent [-] | | It's fine to have various aspiration for H-1B but the issue in the topical article is, ultimately, with businesses defrauding the United States and getting away with it. Meta got barred from filing PERM for several months and ended up paying $4.75M, which is probably less than it spends for catering per month. Nobody got disbarred, nobody went on trial, so it's just a tiny cost of doing business. | | |
| ▲ | lovich 4 days ago | parent [-] | | This is off the cuff game theory, so please feel encouraged to poke holes in it. Would my point B not limit that fraudulent behavior as now the brought in migrant would be free to compete for a better position with higher pay and/or better benefits to the detriment of the company that paid an entry fee? I would also expect this to result in massively less immigration for the same reasons companies are loathe to train entry level employees nowadays as they can jump ship as soon as they become valuable | | |
| ▲ | pandaman 4 days ago | parent [-] | | >Would my point B not limit that fraudulent behavior as now the brought in migrant would be free to compete for a better position with higher pay and/or better benefits to the detriment of the company that paid an entry fee? I don't see how. As I understood, you mean that you want H-1Bs to be able to change jobs, not to hang in the country unemployed? It is already so. Of course, H-1Bs are not the only way foreign labor is imported, L-1s, for example, cannot change jobs and there is no limit on them and every big corp in the US has an office in Canada, where they hire foreigners from all over the world and move them on L-1s to the US, it's much easier and cheaper than H-1B. However, the fraud here is: a) committed by a US business, not a foreigner and b) is not related to any non-immigrant visa such as H,L,or O are. It's a fraud in immigration process. And the immigration is the expected perk of working for a company on a temporary visa. If companies stopped filing for immigration then they would not be able to hire as many temporary visa employees. | | |
| ▲ | lovich 4 days ago | parent [-] | | > As I understood, you mean that you want H-1Bs to be able to change jobs, not to hang in the country unemployed? No explicitly not that. I want whoever sponsors and h1b or the equivalent in my fantasy world here to pay for the cost to society up front and then for that h1b person to have the same freedom as a citizen. My thinking behind that is that if a company is saying we can not find a single citizen who can fill this role so we need to import one, then this makes it real. If that argument is true then I want said immigrant to be in the workforce with the same rules that I have, instead of being a second class citizen which makes them more attractive to companies because they are cheaper/more controlled I believe that allowing for the corporation hiring said h1b to have any say, direct or indirectly, in said h1bs ability to remain in the market will necessarily make them an employee that US companies prioritize. The only way to stop that, from my current understanding, is to make it so that corporations have to pay the cost to add a person to society, but have no say in the decision making process after. Upon review of my post and thinking through why I feel that way, I realized I just want the same deal applied to corporations for bringing in new entrants to society as is applied to people marrying foreigners. I married someone outside the country and as part of their green card application I was required to commit myself to personally covering their social security checks if they divorced me before they made, iirc the exact number was 40, enough payments into social security. Somehow companies aren’t required to have that level of skin in the game | | |
| ▲ | pandaman 4 days ago | parent [-] | | >No explicitly not that. I want whoever sponsors and h1b or the equivalent in my fantasy world here to pay for the cost to society up front and then for that h1b person to have the same freedom as a citizen. That would be too much - an alien having all the privileges of a citizen but no obligations is above a mere citizen. If you want to become a citizen there is an employment-based immigration, if you don't - you are going to be restricted in any developed country because normal countries do not put foreigners above citizens. >My thinking behind that is that if a company is saying we can not find a single citizen who can fill this role so we need to import one, then this makes it real. Nothing like this happens with temporary visa workers. All that company claims in such a case is that they want to hire a foreigner and are going to pay no less than the minimum wage determined for the position. This system is based entirely on the temporary nature of the employment so there is not much scrutiny as the legal fiction here says that the foreigner is going to leave in 6 years tops. | | |
| ▲ | lovich 4 days ago | parent [-] | | > That would be too much - an alien having all the privileges of a citizen but no obligations is above a mere citizen. If you want to become a citizen there is an employment-based immigration, if you don't - you are going to be restricted in any developed country because normal countries do not put foreigners above citizens. My point is that issuing h1bs are a service for corporations in the us, ostensibly under the reason that no one in the country is capable of the job. I am saying that assuming that is true, and assuming that we value brain draining other countries of talent, then we allow for corporations to import workers, but they need to both pay for the cost of the worker and have no control over them afterwards. I don’t know whether the cost to society that would cover importing a worker is 10 dollars or 10 billion, but whatever is decided on as the amount I am suggesting is paid up front. Assuming the corporation paying for the import is correct that the immigrant has a unique skill, then we would want them to be generally available to our labor market instead of tied to a single company. That is my reasoning at least. Again poke holes in this but I do want a system that prioritizes improvements to my society or people in my society. If the benefits for whatever we end up in are centralized primarily in any single private actor, single human or organization, then I am probably against that plan > Nothing like this happens with temporary visa workers. All that company claims in such a case is that they want to hire a foreigner and are going to pay no less than the minimum wage determined for the position. This system is based entirely on the temporary nature of the employment so there is not much scrutiny as the legal fiction here says that the foreigner is going to leave in 6 years tops. I don’t know how to respond to this section. I am either missing some part of the h1b visa rules or we are talking about different things. What you described to me sounds like an agricultural visa or an au pair like J2 visa | | |
| ▲ | pandaman 4 days ago | parent [-] | | You keep insisting that H-1B or any temporary visas are for the jobs that cannot be filled by Americans. This is simply not true. There are no such requirements so you whole reasoning is based on a fantasy. | | |
| ▲ | lovich 4 days ago | parent [-] | | > You keep insisting that H-1B or any temporary visas are for the jobs that cannot be filled by Americans. This is simply not true. As a de facto description of the current situation in the United States I agree with you. The de jure description for why h1bs would be allowed is due to them, again _ostensibly_, having skills or a specific skillset that could not be found in a reasonable time frame and are worth importing. I am trying to game theory out ways to make the h1b system achieve the ostensible goals. I am not trying to defend the current system as it stands edit:
I realized this might be our point of contention right now > There are no such requirements so you whole reasoning is based on a fantasy. I was under the impression that h1bs positions were supposed to pay a “higher than prevailing wage” but there has been a surge of activity around these terms the past few months on the internet and I can’t find definitive proof of that. If that fact isn’t true it would modify my view on the system | | |
| ▲ | pandaman 4 days ago | parent [-] | | >The de jure description for why h1bs would be allowed is due to them, again _ostensibly_, having skills or a specific skillset that could not be found in a reasonable time frame and are worth importing. There is no such description in law (this is what de jure means) so I have no clue why you think so. >I was under the impression that h1bs positions were supposed to pay a “higher than prevailing wage” They are. It does not mean they are for jobs, which cannot be done by an American worker, ostensibly or otherwise. | | |
| ▲ | lovich 4 days ago | parent [-] | | Ok, then I guess what I am trying to figure out is how to build a system that is the same as my de jure description. I was under the impression that was the case and do not need you to prove to me otherwise. But I agreed with that de jure description and would like a system that achieves that | | |
| ▲ | bubblethink 4 days ago | parent [-] | | The ways to build the system you desire are simple; the political challenges though are insurmountable. This isn't rocket science. However, there has been no substantial legislative change in this area in over 30 years. The current morass of H-1B, PERM etc. is a carefully engineered compromise to keep all demanding factions - the restrictionists, the capitalists, the left and the right, acceptably (un)happy. |
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