Justice Dept files suit against Facebook for discriminating against U.S. workers
justice.gov
justice.gov
I guess it's good that the Justice Department is openly acknowledging that this is a problem. Maybe we'll see if actually get addressed at some point now.
That being said it feels like a slightly out-of-place comment when much of this allegation is about hiring for jobs as part of the PERM process. If Facebook is purposely going through the PERM process with these employees, it is actively working to remove those un-equal terms. After the PERM process, the employee is free to leave and not remain with the company until they can adjust status.
Yes, the PERM advertising rules are stupid and outdated, but I don't see any evidence here that Facebook didn't follow them.
If the Justice Department wants to go after true abuse of the H1-B program, there are significantly-more-legitimate targets (Tata, Infosys, etc).
I honestly can't believe that this has made me defend Facebook.
Yeah, this is giving me the feel of a very tailored lawsuit - it is media-friendly, unlikely to be systemically disruptive, and I'd call it extremely likely that it is settled for a press release and no meaningful change.
> I honestly can't believe that this has made me defend Facebook.
I'm going to go take a shower, too.
Also, I wonder what C19 does to H1B visas over the long term. I expect my company to announce permanent WFH at some point, keeping a much smaller physical space for exec meets and whatever.
It may well be that the demand for physical presence H1Bs drops significantly in tech firms.
Even if you're not required to be physically present there's still value in being under the same legal system - good luck enforcing NDA/IP ownership on an employee you never met from a random country across the world with a different legal system and different employment laws.
Also employee retention is even harder in that scenario (the opposite of H1B scenario where you basically capture the employee).
I say this as someone who's freelancing for US clients from Eastern Europe - the only model I saw working for non-trivial stuff is opening offshore offices with a dedicated team/staff/etc. - but then you're dealing with plain old offshoring C19 probably makes this harder because travel is harder and you probably want to fly key people to set things up properly.
There are full remote companies like GitLab but most of their stuff is OSS anyway and their core product is not very innovation based (something that needs IP/NDA protection), this kind of work was getting outsourced/offshored full speed even before C19.
I mean, sure, ya, there is value. Unfortunately it's not really the kind of value that USCIS cares about when it comes to work authorization.
> There are full remote companies like GitLab
Gitlab is not a US-based company anyways, and does not do any US visa sponsorship. Also, claiming that their work isn't innovative and is therefore getting off-shored kind of discounts the work of everyone working there.
There's nothing revolutionary done at GitLab that could leak to competitors, maybe you could compromise their infrastructure to cause damage, but at the end of the day it's yet another app doing a thing that's already been done with the tech everyone already has using methods everyone understands.
Compare that to self driving, robotics, biotech, weapons, etc. - governments and large corporations are hiring spies to steal this stuff - I doubt you get to work on cutting edge R&D related stuff as a remote worker from a different country.
I think they meant the special PERM "benefit" for employees is used as a carrot to attract temporary workers who may or may not ever get it themselves. You can't leave because you'd lose your advantaged insider status.
If you are saying that "not all H1-B workers go through the PERM process and get permanent residency", then yes, that's how it works, and is not at all unique to Facebook. And H1-B is not, and is not meant to be, a guaranteed path to a green card.
If they leave after the PERM + I-140 have been approved, companies have a limited period of time to revoke the I-140 but this is extremely rare and won't happen unless the employee has really burned their bridges. Six months (afaik) after the I-140 has been approved, the company can no longer do anything about it, the employee can leave without any immigration related ramifications.
Also worth adding that interviews or hires from the PERM process would significantly add to length of the PERM process, if I remember correctly.
https://www.cato.org/blog/150-year-wait-indian-immigrants-ad...
https://qz.com/india/1828970/over-200000-indians-could-die-w...
Yes, but you have the option of premium processing for I-140 and I think the benefits far outweigh the cost in this case.
If you pay it, and you don't get it within the 14 day period, you just get the premium processing fee back.
You can pay for premium processing, and not get a decision within two weeks. In that case, you just get the premium processing fee back, and have an unknown wait time still.
But now that companies are fully remote, how are you supposed to be notified of pending H1B, jobs etc... ? It seems like an interesting question!
https://www.facebook.com/careers/areas-of-work/engineering/?...
Almost any job that an H1-B is getting hired for at Facebook, an American can apply for that same job by just going through the standard application process.
"The complaint also alleges that Facebook sought to channel jobs to temporary visa holders at the expense of U.S. workers by failing to advertise those vacancies on its careers website, requiring applicants to apply by physical mail only, and refusing to consider any U.S. workers who applied for those positions."
In order to start the green card process for a H1B employee, the PERM is the first step. The H1B employee's job is advertised as an open position(even though it is not) and candidates are interviewed and the objective is to show that no qualified candidates exist in order for the other stages of the GC process to continue.
GP poster is referring to the original H1B hiring process which is almost always a legit job opening and candidates are found in the open job market. The DoJ is not alleging that Facebook only tried to hire H1B employees for certain positions. They are alleging that FB cooked the PERM job advertisements so that they could continue employing a temporary H1B employee who already is working for FB and has institutional knowledge that FB does not want to lose.
The whole system seems very badly thought out to be honest. And no, just because you need 100 of something doesn't mean that it isn't highly skilled. People who can architect highly performant reliant systems are not that common and can fit most spots at Facebook, they need thousands of those.
It's that stupid.
Facebook was not actively working to remove those un-equal terms. They set up a separate, physical-mail only pipeline for these candidates, and denied any US Citizens who applied using the obscure pipeline.
Meanwhile, US immigration law assumes that you are hiring one person at a time, and that each person is being hired for a separate “position”. You cannot say, we need 3000 people in this role this year, we have 1000, so we need 2000 more.
It ends up just being incoherent. You have to answer questions like “why are you unable to hire an American” and it’s like... well we are. We’re hiring many many Americans.
It claims that Facebook specifically did not advertise some roles on its careers website, which led to these specific roles having ~0 US applications. Whereas most other roles have hundreds of US applications.
What 'roles' were these? Is there some specific role they are not advertising?
Edit: The original complaint https://www.justice.gov/opa/press-release/file/1342786/downl... You are exactly right; there are no 'roles' and it stems from the completely different type of hiring exactly as you describe.
"Beginning no later than January 1, 2018, and continuing until at least September 18, 2019, Facebook’s standard operating procedure was to automatically initiate a PERM process when a temporary visa holder who was a Facebook employee in a “level 3” role1 or above asked Facebook for a permanent position, if the PERM process was needed to offer the PERM beneficiary such a position. 36. Facebook’s standard operating procedure was not to consider the temporary visa holder’s job performance or seniority or consult with the employee’s manager about the temporary visa holder’s job performance before initiating the PERM process on his or her behalf. 37. As noted above, to file a PERM application, Department of Labor rules first required Facebook to ensure that there were no minimally qualified and available U.S. workers for the position that Facebook wanted to offer to the PERM beneficiary. 38. From at least January 1, 2018 to at least September 18, 2019, when a Facebook employee who was a temporary visa holder expressed interest in receiving a permanent position through the PERM process, Facebook diverged from its normal recruiting protocols by not advertising the position on its external website, Facebook.com/careers, by not accepting online applications, and by requiring interested applicants to apply to the position by mail."
Essentially, it seems like when a temporary visa holder working at Facebook wanted to have a permanent position, Facebook would create a 'dummy' role for them, then advertise it where people would not apply, so that they could then hire the employee permanently. But I wouldn't call this discrimination at all; I would call this Facebook hiring as many talented people as they can, as fast as they can. The same 'role' is still available and on the careers website.
I.e., not really new positions, as the temporary visa holder is already in said position.
I'm torn between the "FB should be allowed to scale!" side vs the protectionist "Forcing higher demand would materially impact my personal wages in this profession."
IANAL or a FB employee.
Anyways, thankfully neither me nor my company is in the USA. If this is the reason why one can't build a diverse workplace, you built a very sad country.
Facebook wants to hire foreigners because they want to hire essentially everyone who passes their interviews, and only some subset of those are American.
Yes, it does, you used a figure to suit your argument, now people are rightfully asking for a more relevant figure to see if your argument still stands. So what % of developers live in USA? The rest is just purely your opinion.
More like you don't want to know, or it would turn your argument into an absurdity.
> At what thresholds would it make a difference one way or the other?
Since we can't know how many people are employed as developers, we must guess. But we can reasonably guess that if only 4.25% of the world's population lives in the US, it can't possibly have all the best developers, or even the majority of them.
Without that influx, this concentration would be impossible. If the US heavily restricts immigration by software engineers, the industry will ultimately relocate elsewhere. Europe would love to get all its software engineers back.
As to the H1-B thing, I suspect most of the people here haven't interviewed at the crummier software jobs (like at a commercial bank) but it's amazing how an entire department can be nothing but foreigners of no apparent excellence, and yet they can't "find" any citizens to hire even after interviewing them. There's heavy fraud top-to-bottom and it's going to get much worse.
The motivation for FAANG committing so much fraud using the H1B isn't really debatable. They do it to to steal money for their shareholders. The same motivation for all their tax cheating. The difference being that the H1B fraud is clearly illegal, even if it has remain unprosecuted by virtue of political bribery, etc.
And even if it was true (it's not), FAANG have enough money to train every person they want to hire from scratch. It would just cost more. Which is the entire point: they're greedy in the extreme.
It's very easy to disprove in any specific instance that there aren't U.S. programmers available to fill a role. Take a look at the H1B openings and see if you can't find some people in your LinkedIn connections that could fill those roles and don't yet work for FAANG. I certainly could for almost any role because they're almost all very generic tech jobs.
It also seems likely to be false just based on the number of U.S. programmers and the number of programmers employed by FAANG. They are very big employers but not nearly big enough to employ even a majority of U.S. programmers.
I don't think anyone in FAANG leadership believes this claim to be true at all. They all know why they're committing fraud, which is to compete against the others that are doing it too. The same reason restaurants and farms hire people that are in the country illegally.
You probably fell for the same propaganda about Americans not wanting to work in restaurants or in farms. When in reality, they don't want to compete with people being exploited.
Some companies exploit "unskilled" illegal immigration.
Some companies exploit "skilled" fraudulent immigration.
In both cases, it's the unethical theft of wealth from the population.
When the job is more than perfectly repeatable steps defined by an employer, which certainly describes the development of software, where anyone can be replaced with anyone else, there is sometimes value in specific people doing the job. People who may or may not be American.
And if not music, the same holds true everywhere. There are all kinds of Americans willing to throw themselves into a job – especially a job at prestigious company like Facebook – for minimum wage, or even an unpaid position (often known as an internship). No problem at all. It is definitely not lack of Americans willing to work for almost nothing to even literally nothing. Those people are in abundance – particularly right now with higher than usual unemployment rates.
edit to respond: Fine, then anyone willing to pay taxes in the US should get to work in the US.
Again, fuck the police state. People and communities matter, the state can burn to the ground for all I care.
The government should make rules that make lives better for their citizens,... other citizens have their own governments to take care of them.
Source: Am American, and did not pass the interviews 2 years ago
When visa policies are tightened, FAANG companies don't decide "well, instead of hiring this Indian who passed our interview process, we'll hire an American who failed it instead". Rather, they expand their offices in places with less restrictive visa policies, like London or Vancouver.
Then once you get that office established you can bring people over on L1 visas I believe.
Simply not true for Facebook. The London office has a wide variety of different teams working on different projects, often directly on the same projects as teams in the US offices.
You may be “pretty sure”, but you are wrong. I worked at Facebook for four years including with many people from the London office. I don’t know how else I can convince you.
Facebook already has offices over there. Everywhere. They could hire tomorrow. They want slaves and slavery is what this shit is about.
This is how it works. Foreign manager bribes a US based VP and gets a inter-company transfer. Automatic L1 visa no questions ask. Then they start selling 200-500k jobs to people they know back in their home country. Those people pay a cut, maybe $50k maybe $150k to their trafficker in order to come to the US as a SDE away from their "shithole" country and make $50k.
They don't know what they are doing. Doesn't matter, SDE, manager, director, VP are all from the same country and are a fucking GANG
Someone who can pass their interviews and earn $300k in SF can just as easily earn $150k in Mayberry. And that $150k goes a lot farther in Mayberry than $300k does in San Francisco.
I'd gladly work for them if Zuck promises that I can remain in Mayberry while I draw a Facebook salary.
I’m sympathetic to the idea that we should have a generic immigration mechanism for skilled workers. But we don’t have that. Congress hasn’t created one because the American people won’t support one. (Or at least, the parties that want such a thing aren’t willing to spend political capital on it so long as they can kick the can down the road by abusing the current system).
No it wasn't (as your own link clearly states), the H-1 was created in the 1950s, but the the H-1B was created in the 1990 INA, along with statutory dual intent for the H-1 category, and along with the creation of the O-1.
The AC21 indefinite extensions were added because the per-country backlogs were not anticipated back when the program was created. But it has always, from the very beginning, built a path to permanent residence in via EB2, EB3 and the dual intent provision.
Edit: The person replying to me about the H1B not being dual intent from the beginning is wrong. I have receipts. The H1B was introduced in the Immigration Act of 1990.
https://www.congress.gov/bill/101st-congress/senate-bill/358...
> `(h) The fact that an alien is the beneficiary of an application for a preference status filed under section 204 or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i) or (L) of section 101(a)(15) or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph, if the alien had obtained a change of status under section 248 to a classification as such a nonimmigrant before the alien's most recent departure from the United States.'.
Edit to respond to the second reply: The H-1B is dual intent. I did not make any claims about a visa category that no longer exists. Besides, the argument about whether the H-1B is an update or a new category doesn't matter -- it is clear that Congress intended for the H-1B, as created (or updated if you will) in 1990, to be a path to permanent residence. The assertion that it was never intended that way is ahistorical.
Further edit: It sounds like rayiner's dad came in on an older H-1 which indeed didn't have the dual intent provision, not an H-1B which does. The details matter here!
Further, further edit:
> The only reason you need “dual intent” is because the law still requires H1-B holders to have non-immigrant intent.
I literally pointed to the provision of the 1990 Act which does not require non-immigrant intent for people in H and L statuses. This is what Congress intended.
Of course the H-1B isn't an immigrant visa. It is a dual intent visa, in that it preserves the option value of not having to become a green card holder (and thus pay US taxes worldwide if you decide to leave later, etc.) So someone on an H-1B can choose to become a permanent resident, but doesn't have to become one.
I'm sympathetic to the argument that people should have to decide within a few years either to leave or to stay permanently, but for that the green card backlogs need to be eliminated by statute.
It has not.
> It has not.
The H-1B has been. The broader H-1 has not (but has been for 30 years, just as long as the H-1B has existed, other than H-1B1, which is not.)
The H-1B is, under the statute, one of the subcategories within the H-1, and is covered by the same rules except to the extent they are explicitly distinguished. The H-1B1, another subcategory, is explicitly not included in the carve-out of the H-1 from the rule generally prohibiting immigration intent for nonimmigrant visas, which, so the H-1B1 is not, while other H-1s including the H-1B are, dual-intent visas.)
H-1 nonimmigrant visas are the set of visas governed by 8 USC Sec. 1101(a)(15)(h)(i), which included the H-1A [now defunct, formerly Sec 1101(a)(15)(H)(i)(a)], and includes the H-1B [Sec 1101(a)(15)(H)(i)(b)], the H-1B1 [Sec 1101(a)(15)(H)(i)(b1)], and the H-1C [Sec 1101(a)(15)(H)(i)(c)].
The relationship is not the same as ID 1030 to ID 103.
“Dual intent” is the “administrative fiat” I was talking about. Both the 1952 and 1990 INA define an H-1 worker as an alien “who is coming temporarily to the United States to perform services.” Non-immigrant intent is a prerequisite for the category. Since the 1952 Act, the INS adopted a fiction of dual intent to turn the H-1 visa into a de-facto immigration visa. However, the State Department didn’t recognize dual intent. When an H1 visa holder filed an immigration petition, the State Department treated that as signaling intent to immigrate, in violation of the H1 terms. When the visa holder travelled, they risked not being allowed back in the country, causing significant hardship.
With the INS having backed Congress into a corner, the 1990 INA included a narrow solution to eliminate the specific hardship and maintain the status quo. But it didn’t change the fundamental nature of the H1 visa as a temporary immigration visa. It’s still a temporary non-immigrant visa in the statute, as distinguished from immigrant visas which are also in the statute. The committee’s legislative history for the 1990 INA makes clear that Congress was just kicking the can down the road and alleviating that specific hardship without reconceptualizing H-1B as an immigrant visa:
> The difficulties encountered by those seeking temporary admission who have also expressed a desire to immigrate at some time in the future have caused severe personal hardship as well as inhibited frequent travel to the United States for business purposes. This has been particularly onerous for the beneficiaries of H and L visas. The Committee [on the Judiciary] sees no useful purpose in denying temporary entry to the United States for business purposes because of an inability to show that a residence abroad will not be abandoned. Such presumption of immigrant intent in particular circumstances creates purposeless, but often insurmountable, barriers for the prospective employee and the employer. For all categories of nonimmigrant visas (including the H and L), the bill provides that the filing of an immigrant petition cannot be a factor in determining whether an alien intends to abandon a foreign residence. The Committee notes, however, that the consular officers may rely on other evidence indicating the possibility of overstaying a visa, such as records of past visits to the United States.
If the H1-B was “meant as a path to permanent residence” the whole “dual intent” thing would be meaningless. The only reason you need “dual intent” is because the law still requires H1-B holders to have non-immigrant intent. It’s a kludge to deal with the fact that Congress can’t actually muster the votes to create a real skilled immigration system.
Except that while the term "dual intent" is a term of art which doesn't appear in the statute, the exception from the rule requiring no immigration intent for non-immigrant visas for visas in the H-1 category (from which exception the H-1B1 is now also excepted, putting it back into the no-immigration-intent category) was also part of the 1990 INA that created the H-1B. While there are categories where you might argue dual intent exists by administrative fiat rather than statute (IIRC, that's the practice with P nonimmigrant visas), its absolutely not the case with V, H-1 (except H-1B1), and L visas, which are explicitly statutorily excluded from the no-immigration-intent rule.
> Since the 1952 Act, the INS adopted a fiction of dual intent to turn the H-1 visa into a de-facto immigration visa.
Possibly true between 1952 and 1990, but since 1990 the H-1 has been a visa which explicitly, under statute law allows for immigration intent. To the extent that there was an administrative usurpation involved, it hasn't been an issue since the middle of the George H. W. Bush Administration, and, moreover, its never been an issue for the H-1B, which was created at the same time as the explicit statutory dual intent rule.
As broken as the process is, the DOJ and commenters here clutching their pearls in the direction of excluding would-be permanent residents, by (for example) making false claims about how H1B was never intended to provide option value, are doing a xenophobia.
The H-1 and H-1B system was the result of a political compromise. Americans didn’t want to create a new flow of skilled immigrants. So what Congress created in 1952 was a program for skilled nonimmigrant temporary workers. It came to be used, by executive fiat, as a permanent immigration system. And in 1990, Congress papered over it a bit. But if you read the 1990 statute, it still says it’s for “nonimmigrant” “temporary” workers.
The H-1B was never intended to give workers the “option” of either staying permanently or going back home. You seem to be confused about what “dual intent” means. It’s not an option (disjunctive). It doesn’t mean you can choose to be a temporary nonimmigrant worker, or an immigrant who intends to seek permanent residency. It’s a conjunctive. It means that an immigrant has both the intention to not immigrate permanently, and the intention to immigrate permanently, at the same time. Why do you need both? Why does the “dual intent” provision of the law say that filing a permanent residency petition shall not create a presumption that the person intends to immigrate? Isn’t that a ridiculous thing to say? Obviously someone who files a residency petition intends to immigrate! The reason you need all of that logical contortion and hoop jumping is because the H-1B is still intended for nonimmigrant temporary workers.
It’s very simple. Why does the law require Facebook to advertise a job to US workers when it files a PERM certification? There is already an H-1B worker holding that job! If the H-1B visa is intended to give that person the “option” of permanent residency, why does Facebook have to try and find someone else for the job? And if Facebook actually advertised for the job properly and found an American worker, the H-1B worker would then not get permanent residency and have to go home. If the system intends to give the H-1B worker the “option” to be an immigrant, why would it be designed that way?
What the DOJ is doing is enforcing the original design of the immigration law. Part of that compromise was that temporary H-1B workers would only be allowed to get permanent residency if the employer can certify that it has looked and can’t find an American to do the job instead. The process isn’t supposed to be a formality where Facebook ensures that the H-1B worker gets to keep the job so he or she can get permanent residency.
> In its investigation, the department determined that Facebook’s ineffective recruitment methods dissuaded U.S. workers from applying to its PERM positions. The department concluded that, during the relevant period, Facebook received zero or one U.S. worker applicants for 99.7 percent of its PERM positions, while comparable positions at Facebook that were advertised on its careers website during a similar time period typically attracted 100 or more applicants each. These U.S. workers were denied an opportunity to be considered for the jobs Facebook sought to channel to temporary visa holders, according to the lawsuit.
In practice, what happens is that an H-1B worker is working for Facebook and wants to obtain permanent residency. To do that, Facebook files a PERM labor certification, which requires it to advertise the position to Americans. But Facebook doesn't want to hire someone else to fill that position--it wants the H-1B worker to continue doing the job they're already doing.
If you think of H-1B as being for people who wanted to seek permanent residency all along, this makes little sense. Why require Facebook to advertise a job someone is already doing to other people just to sponsor that person's permanent residency? After all, this person may have been in the U.S. already for years, and is surely counting on being allowed to keep his or her job and stay in the country.
To make sense of this bizarre system, you have to realize that H-1B was not designed for people who intended to immigrate all along. It was designed to satisfy the demand for temporary workers with people who will mostly go home afterwards. The PERM advertising requirement exists to ensure that there really is no American who can do the job instead.
Assuming for the sake of argument that Facebook does face a shortage of skilled engineers, what it faces is a structural shortage. To deal with that structural shortage, it needs immigrants who intend to work in the U.S. permanently. But we don't have a good vehicle for skilled immigrants to say off the bat "I want to come to the U.S. to work, and I intend to stay in the U.S. permanently." H-1B wasn't designed for that. It was designed to fill temporary shortages.
When it comes to "fixing" the H-1B system, you can't overlook the underlying political compromise. Americans don't support creating a permanent flow of skilled immigrants. (At least, not without concessions in other areas, such as curbing illegal immigration.) It seems obvious to "fix" H-1B by just getting rid of things like the PERM advertising requirement. But if you do that, you're subverting the political compromise that led to H-1B in the first place.
The statute doesn’t say anything about “dual intent.” That’s an administrative fiction. Under the actual law, the H-1B is a “nonimmigrant” visa status for temporary workers.
The status is defined in Section 1101(a)(15), which describes various “classes of nonimmigrant aliens.” See: https://www.law.cornell.edu/uscode/text/8/1101
In that same provision, subsection (H)(1)(b) defines the status as a worker “who is coming temporarily to the United States to perform services” in a “speciality occupation.”
The provision you quote doesn’t create some concept of “dual intent.” It simply says that someone shall not be presumed to have immigrant intent just because they file an adjustment of status petition. Why would that even matter? Because H-1B still requires nonimmigrant intent!
If Congress had designed H-1B to be a pathway to permanent residency, it would say that in the statute. Instead what happened is that for 40 years the executive branch abused the H-1 program to turn a temporary immigration visa into a de facto permanent immigration system. Congress didn’t want to blow up the status quo, but also couldn’t get the vote to create a real system for permanent immigration of skilled workers. The 1990 INA doesn’t even use the words “dual intent” or anything like it. Congress did the minimum it needed to address the situation where State Department was barring H-1 holders who has filed an immigration petition from re-entering, because that’s all they could get the votes for.
V, L and H-1 (including H-1b, but excluding H-1b1) nonimmigrant visas are explicitly, by statute, excluded from the rule requiring nonimmigrant visa holders to lack immigrant intent; Immigration and Nationality Act Sec. 214(b), as amended, codified at US Code Title 8, Sec. 1184(b).
"Dual intent" isn't an administrative fiction, its a term of art for the nonimmigrant visa categories excluded from the generally applicable requirement for having (and demonstrating) the absence of immigrant intent. Its true that there are some visa categories where "dual intent" is applied adminstratively rather than from a clear statutory rule, but V, L, and H-1 (except H-1b1) visas have explicit statutory allowance for dual intent.
> If Congress had designed H-1B to be a pathway to permanent residency, it would say that in the statute.
But...it does say that in the statute.
> Instead what happened is that for 40 years the executive branch abused the H-1 program to turn a temporary immigration visa into a de facto permanent immigration system.
Whether or not H-1 may have been abused that way between 1980 and 1990 (the first 10 years of your "40 year period") [See EDIT below], the exemption of H-1 and L visas from the no-immigration-intent requirement has been express in statute since the Immigration Act of 1990, so for the last 30 years the behavior you complain about has been strictly as directed by statute.
References:
Summary: http://www.americanlaw.com/dintent.html
Current codification and history: https://www.law.cornell.edu/uscode/text/8/1184 [history of amendments, including text added by the 1990 amendment at issue, by clicking "Notes"]
[EDIT: The H-1B can't have been abused between 1980 and 1990, while I checked when the H-1B was added to the exception from the no-immigration-intent rule, I didn't check when the visa category itself as added, which was at the same time in the INA of 1990. So, no, it was never abused as a route to immigration, it has always explicitly allowed that use in the statute. Conceivably, the unsplit H-1 could have been abused between 1980 and 1990, though.]
The US Code Title 8, Sec. 1184(b) has nothing to do with the "dual intent" thing. What happens there is that people on visas like B2 are _presumed_ to be immigrants, and need to actually argue that they are not in front of consular officers in the embassy and the immigration officers at the border. The holders of V, L and H visas are exempt from this, and they are presumed non-immigrant by default. However, contrary to what you say here, L and H visa holders are still required to lack immigration intent.
The dual intent rule stems from completely different piece o US code, see the section 205 of Immigration Act of 1990:
> (h) The fact that an alien is the beneficiary of an application for a preference status filed under section 204 or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i) or (L) of section 101(a)(15) or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph, if the alien had obtained a change of status under section 248 to a classification as such a nonimmigrant before the alien's most recent departure from the United States.'.
This is the source of the dual intent doctrine. Note what it says: it says that application for permanent residency shall not constitute evidence of an intention to abandon a foreign residence. The reason it says so is because prior to that, such application has in fact been used by Department of State to presume immigrant intent on behalf of H1 visa holders, and to deny them entry. This is the "legal fiction" rayiner is talking about: H1B visa holders are still required to have no immigration intent, and while the US Code Title 8, Sec. 1184(b) frees them from the presumption that they do have one and requirement to prove that they do not have it, the dual intent doctrine was still necessary in order to bar government agencies from concluding that they intend to immigrate based on their application explicitly saying that they intend to immigrate.
> But...it does say that in the statute.
No, H1B is still a non-immigrant visa, see section 1101(a)(15) which defines the non-immigrant visas.
> the exemption of H-1 and L visas from the no-immigration-intent requirement has been express in statute since the Immigration Act of 1990, so for the last 30 years the behavior you complain about has been strictly as directed by statute.
Right, the amended statute doesn't make it actually illegal, but still the whole procedure is based on legal fiction of not concluding immigrant intent where there obviously is one.
Rayiner did not reference a “legal fiction” based in statute, he referenced an “administrative fiction” that he specifically claimed was unsupported by the statute and a product of abuse by the executive over the last 40 years.
This is clearly false. It is expressly the statutory policy directed by Congress.
Yes, that's what makes the fiction legal. However, the "fiction" part is about prohibiting government agencies from concluding immigration intent based on the application for permanent residency which clearly does show immigration intent. The H1B holders are still technically required to not have immigration intent, and it still technically is a non-immigrant visa, but it's all a fiction in practice.
> (b) Presumption of status; written waiver Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 1101(a)(15) of this title, and other than a nonimmigrant described in any provision of section 1101(a)(15)(H)(i) of this title except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 1101(a)(15) of this title.
This creates a rebuttable presumption that an alien has immigrant intent, and excludes H-1B holders from that presumption.
But the H-1B is still a non-immigrant visa. 8 USC 1101(a)(15) clearly distinguishes "immigrants" from "nonimmigrant aliens." An H-1B is classified as a "nonimmigrant alien." Subsection (H)(1)(b) still applies to those who will work "temporarily" in the U.S. H-1Bs are still governed by 8 USC 1184 ("admission of nonimmigrants") and not 8 USC 1181 ("admission of immigrants").
> "Dual intent" isn't an administrative fiction, its a term of art for the nonimmigrant visa categories excluded from the generally applicable requirement for having (and demonstrating) the absence of immigrant intent.
It's a term of art that refers to an administrative fiction. That fiction allows a visa that is by its terms a nonimmigrant visa for temporary workers to be treated in practice as the first step in the path to permanent immigration. The 1990 INA doesn't change that in substance--it merely excludes H-1Bs from a presumption to avoid blowing up the fiction. This is the result of H-1B being a statutory kludge in response to the executive branch's longstanding abuse of the H-1 visa created in the 1952 INA.
Other countries have real skilled immigrants visas that are designed to be such. They work very differently, and make much more sense because they were designed for that purpose. E.g. https://www.canada.ca/en/immigration-refugees-citizenship/se...
Specialized, yes, but it isn't supposed to be for completely unique skills. If someone is one of the top 100,000 software engineers in the world, that is a specialized skill set. And it makes sense for our country to encourage those people to immigrate.
That’s a decision for Congress to make and it hasn’t done that. What it has created is a temporary immigration system for skilled workers. The skills don’t have to be unique, but employers must prove that they can’t find workers with that skill set domestically at prevailing wage rates. And that it seems absurd for places like Facebook to say that when they reject so many applications from talented developers.
Whether tech interviews should be algorithmic or not is beside the point. But they have a very well-defined process. So every rejection and acceptance is probably very well documented.
It isn't absurd at all. Facebook is one of the companies doing this the right way. Facebook interviews H1-B candidates in exactly the same way it interviews American citizens, and they pay the same to H1-Bs and American citizens in the same role. When they reject an American candidate, it's because they don't think that candidate is sufficiently skilled, not because they want to hire a foreigner with the same skills for cheaper.
Stop the fucking bullshit goddammit.
You can't make up for that by just offering higher wages. Maybe a few top companies would be able to manage it, but only by poaching all the engineers from other companies. Ultimately, the industry will move elsewhere if US companies can't hire foreign engineers. The US only supplies a fraction of the world's software engineers. There's no inherent reason why the world's tech sector has to be so concentrated in the US.
That's nonsense. FB pays upwards of $200K per year to fresh CS graduates. Compare that to $60K made by a chemical engg graduate. If there were plenty of talented developers why are they paying such astronomical salaries?
Because Facebook (and Google, for that matter) discovered a money hose that is called online advertising, so they can be more liberal with the money they dole out. Also, SV tends to be expensive.
The amount of money your are paid does not necessarily mean you are the best and brightest, as much the HN/software types like to believe.
They are more generous because they have more money? Preposterous. That's not how businesses work. Businesses pay the lowest possible salaries regardless of how much money they make. If they are paying high salaries that's because that's what it takes to hire the top talent. The laws of supply and demand come into play here, not generosity.
I think that US should have an option to give residency to top professionals, but H1B visa hasn’t been designed to allow that, and it is now used for that through hacks, legal fictions and tacit agreements.
Besides, the idea of trying to segregate workers like this is bogus anyway. Fuck the police state.
Also, the proportion of the total population that's capable of getting a job at FB is quite small. Within FB the people are largely interchangeable, precisely because of that high hiring bar. Everyone who's hired is smart, so they can all do everything (in theory).
The problem at the core is the law itself. Why don't we instead just auction off visas to improve efficiency?
The areas with lower cost and wages can't compete attracting local talent, but auctions would make it even harder for them to attract foreign talent as well. It's a losing proposition for pretty much everyone.
It effectively says you can't hire a better person from abroad if there is a person who is good-enough domestically.
(I'm only saying what the law says, not what is best for Facebook, the USA, or even what is morally right)
SWE is a specialization and job descriptions typically ask for things like experience dealing with high QPS distributed systems which is a very specific skillset.
Have you checked out FB salaries? They pay upwards of $200K for a fresh CS graduate. Compare that to a mechanical or chemical engineering graduate that makes $60K at best. You really think they would pay 3x if the skills aren't rare?
Now suppose instead of 3 employees, you need 3000. You find 1000 Americans able to do the role, and hire 2000 non-Americans for the remaining roles. This still seems consistent with the intention.
Facebook is looking to hire a human to fill a spot in the org chart. The fact that they are hiring other people for other spots in the org chart (and they might be able to swap people) does not change that they are positions.
>You have to answer questions like “why are you unable to hire an American” and it’s like... well we are. We’re hiring many many Americans.
Saying no to this question means you are not hiring a US resident for this position. You're hiring many US residents for other positions. That seems...accurate?
Are you thinking that, if a company hires X number of US residents, that should entitle them to hire Y non-US residents? I'm not trying to be obtuse - I want to understand what a non "incoherent" policy would look like for you.
If you said to me “we are building a VR headset and there is a specific image technique we want to employ to correct for foveated lenses, and we want to bring in an image processing expert” then that would be different if I was the judge.
I’m not arguing what should be the case, I’m saying what I think the intent of the current law accommodates for.
This isn't true. Most (not all) engineers are just hired into "Facebook", in general, not onto a specific team with a specific manager. They choose a team to join about ~2 months after joining the company and going through an internal training and team selection process.
That, to me, sounds like a place on the org chart. Like you have a division or a subsidiary and they have X engineers. Those engineers could be placed with more detail, but they're still inside the organization.
If you're hiring janitors aren't they still janitors even if you don't know what building they will clean?
I feel like I am totally missing the point that people are trying to make and I apologize for being obtuse.
Edit: Probably a better thing to say is - even if I was using org chart wrong, I don't see how it would make a difference. Hiring N people that fit a set of requirements is seeking to fill N positions.
[1] https://en.wikipedia.org/wiki/Organizational_chart has examples of both. You could imagine the organization chart of Tabulating Machine Co. including headcounts for each division.
On an intellectual level, I guess the distinction is in how you define "highly skilled" workers. Are all software engineers considered highly skilled? Or is there a distinction between a general engineer and someone who has experience and expertise in a specific subfield such as mobile development or infrastructure?
My way of thinking about it is with the latter. I would think that the DoJ is not happy with the idea of Facebook jumping through a bunch of hoops (mentioned as making positions invisible on their career site and requiring an application via physical mail while rejecting any U.S. candidates) to guarantee a work visa for someone to do specialized work that the company supposedly couldn't find any qualified Americans for when the person they hired doesn't even know what type of work they'll be doing or what team they'll be joining until after they go through 5-10 weeks of bootcamp, and which may end up not even aligning with their specialization.
Given that new hire engineers at Facebook sign an offer letter and are officially employed while they go through bootcamp before the whole team matching process, I don't think it's possible for someone to not get matched to a team, at worst they would get assigned to a random team with headcount at some point, which would really raise the chances of that person not working in their specialty.
If this assumption is true, the DoJ would definitely not be happy that Facebook was supposedly not able to find a qualified citizen/green card holder to do this job, but the new hire on a visa may not be qualified to do it either and there were most likely citizens/green card holders applicants who actually do have experience in that area of work.
Sorry if this is a bit ramble-y, I'm fairly new to HN.
The interesting thing is how difficult it is to understand the specific goal(s) of legislation. It depends on who you ask.
At Facebook, as of earlier this year at least, most Software Engineer and Production Engineer hires are definitely not headed toward a particular team. For the first few weeks, they're in 'bootcamp', which is quite generalized. For example: I've never done any meaningful Android or iPhone development in my life, but during bootcamp, I learned how to do Android and iPhone development (at a basic level) at Facebook.
After the first few weeks, but with a couple of weeks remaining in bootcamp, new hires are actively looking at and talking to different teams with open positions to join. By the end of bootcamp, a total of about five weeks, the person formally joins a team.
So like, the government says facebook had a bunch of PERM positions that they sandbagged recruiting for to Americans. But then, > while comparable positions at Facebook that were advertised on its careers website during a similar time period typically attracted 100 or more applicants each.
Are these...the same positions? How does facebook's hiring process work? Is there actually any discrete limit to the 'slots' on the careers website? Do they have 2500 listings for software engineers, or just like, everyone applies, we are looking to hire ~2000 people this year.
I can see where the government is probably right in saying "you did it wrong". But if you are facebook, and the hiring strategy is honestly:
* Hiring for the 'American' positions is only limited by the company finding the applicant skilled enough. There is no numerical cap.
* Only foreign applicants apply to a discrete, government-limited pool of PERM positions. This way you don't waste the PERM positions on Americans, who can apply to you nigh-unlimited pool of 'American' positions.
* Starting salary for everyone is the same ($156k)
I could certainly see that the government's way of interpreting your 'insidious hiring program' is flat-footed to the point of being wrong.
Suppose the 500 jobs at the highest skill level are basically impossible to keep filled? Playing games like you suggest allows them to continually hire less skilled workers for roles Americans have no problem filling also. And they can continually complain to congress about needing more visas.
At top tier software shops (that pay US and immigrant employees the same) you're lucky if you can find enough US employees to fill the available roles by the time the next fiscal year starts. There are plenty of people applying who call themselves "Software Engineers" but most of them aren't very good. There is also a limit to how many new grads you can take on while having the bandwidth to train them. Once every team of 3-7 has a new grad you can't really take on any more. And the places I'm talking about already pay the highest salaries and bonuses in the world for SWEs.
Doing an L1 transfer or H1b is a lot of work. Dealing with PERM is a lot of work. If there really were a glut of super capable US engineers no one would bother going through that hassle.
Just what is supposed to happen here when you're already paying 2-3x (or more) average comp, hiring hundreds or thousands of US engineers every year, and you still can't find enough people?
I guess the government thinks somehow you should use the PERM process to find a replacement for your immigrant employee when you already can't find enough qualified US candidates to fill the brand new positions your company created this fiscal year? That chain of logic just leads to an even bigger deficit in unfilled positions or a government mandate to lower hiring standards. Neither of those is good for the company's competitiveness.
I don't know if this case is politically motivated but surely the Justice Department's time would be better spent going after the many well-known H1b body shops, where mega corps are abusing the system to replace US workers with cheaper immigrants?
And while I shudder at the thought of Facebook not being able to man its critical ad targeting development, this is all about growth and taking over every major new booming product category as they emerge. The more people they can funnel into the game of leveraging of their current products to take over others, the more they can take over. Then the economics of paying more makes sense. Also the need for people productive immediately without training. Though according to the complaint, the pay for PERM positions is 156k, not that crazy. And that's the average. For a company in Menlo Park. This isn't the "super-capable" people of the field.
But honestly, I think for the same reasons that what they did was sketchy, I find myself agreeing with it more. I think that the complaint really buries the lede because not only did they have someone in mind with these PERM positions, according to the complaint, it looks like they had someone in mind who already worked for them.
Once again, I can see why the government is mad, facebook seems to have hacked their process. But while there is an accusation of a systematic dark pattern, I don't view it as a pattern of abuse. If the law is so spinlocked that you can't in good faith hire your own employees at market rates since they aren't American, I can't really blame companies trying to take their destiny into their own hands.
Here's my conclusion from this experience: if you are in a business that depends on Intellectual Property competes globally (i.e. not a nail salon hiring local workers), then in the area that gives you your competitve advantage YOU NEED TO HIRE THE BEST GLOBAL TALENT. Period.
If the immigration system doesn't allow that, then either you'll hire remote, or you'll be beaten by an international competitor with more liberal skilled immigration rules. Neither is a great outcome.
There are simple ways to ensure H1-B is used to hire this type of talent. The recent rules that prioritize H1-B applicants based on their salary are positive IMO and address a lot of the Tata/Infosys abuse (which is real). If you are truly going after the best global talent, that won't be cheap!
H1-B is super old school. The notion is that you only hire someone in H1-B if there's nobody that can do the job. However, the challenge today is not if you can do the job, but can you do it better than the global competitors? That concept is super foreign to immigration legislation (no pun intended :).
Short of a whole new immigration framework, increasing the number of H1-Bs and prioritizing based on salary would be a good short term fix - no lawsuits needed.
You have to remember that H1-Bs are used for many occupations and industries outside of tech. Prioritizing by salary only effectively means that 99% of all H1-Bs would go to 3-4 large companies.
Yes, nurses, doctors, etc may not get paid as much as a FAANG engineer a couple of years out of college, but they are still often needed.
I think that if you want to prioritize by salary within industries that could potentially work, but then you're bordering on a "new immigration framework".
Doesn't that mean nurses, doctors etc. should be paid more, rather than the reverse?
But tying it to only salary doesn't create a balanced system.
There are occupations that are understaffed and have a need for foreign skilled workers that simply can not practically match what a FAANG engineer gets paid.
Therefore their wages should probably be lower.
Yes, they do, but that does not mean they will beat out what FAANG is able to pay an engineer if H1-Bs are granted based solely on salary.
> At any rate, different job categories can have different requirements.
I'm not sure what you mean by this, but if you mean different salary requirements, then that effectively goes away if you start granting H1-Bs based solely on salary.
> Musicians, theatre all works the same way.
This is... kind of my point? I seriously doubt that these musicians and artists are being paid comparably to a SF-based FAANG engineer. If they are, they are more-likely-than-not qualified for an O-1 anyways, so the point is kind of moot.
OP at the top of this thread suggested that it effectively should, by just giving H1-Bs to the 80k jobs per year that would pay the most.
I am disagreeing with that statement.
Is it in the nation's best interest for you to hire the best person? or to hire a tax payer?
It's not old school, it's self protection.
> students who are likely to take the knowledge gained (at institutions built in part through decades of public funding) back to their home countries (understandably).
Or, if they're allowed to, remain in the US and contribute to its continued technological and scientific dominance. Even if they eventually leave the US, they don't just soak up knowledge while they're in the US. Most actual research is done by graduate students, for relatively meager pay. The US has a continual influx of extremely smart people who are willing to work relatively cheaply to keep American research institutions at the forefront of scientific research. How is this a bad deal for the United States?
What SV is doing is perpetuating US dominance in software (and some hardware development fields). If most of the skilled software engineers in the world become off-limits to SV companies, then the global software industry will cease to be so heavily concentrated in SV.
It's strange and amusing to see people earning hundreds of thousands of dollars a year complaining about foreigners undercutting their salaries. They imagine that if immigration is restricted, then the open jobs will go to Americans. The reality is that the jobs will leave. Aesop must have written a fable about this sort of situation.
But it's not as if China and India are in control of this process. Unless they're going to take the drastic step of preventing young people from leaving, it's not up to them to say how many students go to the US. They do increasingly try to get students to return, and any increase in xenophobia or restrictions on immigration in the US will make that easier.
Country X gets the top students from country X, the US gets the top students from the world!
That smart TA from X European country helping American undergrads on that problem set? He's not helping undergrads from his country. He's not publishing papers that would boost his country's schools either.
One might ask if the lab he works at would even exist without foreign grad students! Would there be enough native applicants to staff it?
Graduate school isn't a zero sum game. It's an ecosystem and ecosystems have a huge network effect.
So the choice is to let companies import talent or see them move to another country.
If the US did away with the H1B visa entirely, companies here would hire people they would have previously overlooked and train them to be as competent as what they would have hired abroad.
These allegations may or may not be true but I fail to see how your framing addresses the complaint.
I agree that forcing higher pay for visa holders helps to align incentives.
If you join tech companies such as FB, Google, Amazon or MSFT as an H-1B immigrant, if your performance is good they want to keep you, so they sponsor you for greencard. Once an employee gets a greencard he/she is free to leave the company, so if the goal is to underpay you want to NOT sponsor for greencard.
As part of sponsoring an employee for greencard you have to post an advertisement for the position the employee is already doing a good job in, so most employers see this as a formality and don't recruit as vigorously as they would for a position that is actually open. This should be expected, and the problem is the stupid rule, not the companies. The rules need to be changed to advertise before the position is given to an H-1B candidate, not afterwards.
I think this is an important factor that shouldn't be ignored. An employer can not choose to keep you on an H1-B forever. That status will expire after 7 years, at which point you are either leaving, or have already begun the PERM process.
It’s a really backwards system with messed up incentives that probably needs to be reformed.
I have a good friend who was network ops for Riot Games some years back. He is a German who is in America on an H1-B visa. He and I spoke openly about his salary once, which was $97,500. I know Felix is great at his job... but given the experience and knowledge he had, along with the insane responsibilities he was tasked with, I wouldn't have done it for less than $125,000.
No, they're not. Facebook employees have very thoroughly reverse-engineered the compensation bands in internal groups. We know for a fact that it makes no difference whether one is on a visa.
Indeed, H1B holders might have less negotiation leverage. That’s a real problem but not really what we’re discussing.
FANG hires anyone who can pass their hiring bar, regardless of their background, and there is always a shortage of applicants passing that hiring bar.
Some companies do care about costs. FB cares more about the second part.
And knowing that someone is getting $500k is an outlier given that more senior engineers would likely not be on H1-B at that point in their career because they’d have a green card by then. So your anecdote doesn’t apply to the majority of cases I’m talking about which is at entry or mid level.
Here is Facebook:
https://h1bdata.info/index.php?em=Facebook+Inc&job=&city=&ye...
1. Evaluate resumes and interview candidates, both US and foreign, practically without taking into account national origin and visa status (With the possible exception of national bans / not eligible for visa due to past deportation, etc).
2. Once decision is made, let the immigration department figure out a legal way to get the person hired a visa (through H1B, internal transfer, whatever).
3. If the H1B process prescribes advertising the position to US applicants, that will be done, but the decision for that particular job has really already been made (then again, big companies are constantly hiring, so maybe US applicants get considered for other suitable jobs).
So while I don't think these companies, in general, are trying to get cheap labor, or discriminating against US applicants, some of the provisions of the law (giving strict priority to US applicants) are only being followed in a ceremonial way, and, giving the fluid nature of job characterizations in the industry, are probably near-impossible to follow in a realistic way.
But it’s also silly to say FB doesn’t care about overhead when they made a big deal about paying workers less if they moved to a lower cost of living area.
And if they do at the entry or mid level it’s because they joined at a favorable time and seen their unvested stock appreciate.
There is a reason why Facebook likes H1-Bs.
I don’t think mid level or new grads get that comp anywhere H1-B or not.
> And if they do at the entry or mid level it’s because they joined at a favorable time and seen their unvested stock appreciate.
That’s the upside of working for a public company.
You still only have a little time to find a job. Just because you could find something fast doesn’t mean it’s not stressful, especially if you were fired for performance reasons.
That's putting it lightly. You can earn in the ballpark of 125%-150% of MSFT/GOOG (not sure about AAPL) in Seattle, all bonuses and incentives considered. On Blind, Facebook employees seem pretty open about focusing on their salary above everything [evil] Facebook does, and I would be lying if I haven't considered bending my morals for that paycheck (because it is absurd).
https://twitter.com/EricRWeinstein/status/107032731818526720...
https://www.ineteconomics.org/uploads/papers/Weinstein-GUI_N...
I've worked at several large corporations were workers would drift around different business groups, picking up work and getting another short term contract in order to stay in the country and continue to be gainfully employed. There was a running joke between managers about recycling developers so they never had to sponsor any of them.
I also worked at two different startups where they hired a developer and then a few weeks into the gig, they figured out this wasn't the person they thought they had hired. The second time, I wondered to a co-worker about it and he said there's a huge problem with one person (the qualified candidate) doing the interview and then they send a totally unqualified person to the gig.
I also experienced large teams were an Indian developer would be getting close to his H1-B expiring and suddenly send a manager an email about a "sick family member" and having to return to India, never to show up again. One of co-workers said its pretty common and the H1-B devs are constantly interviewing and if they get a fresh contract, they'll just leave the current company and start at the new one - without any heads up to anybody, they just ghost.
The whole program is so unregulated and so many loopholes for both sides to take advantage of, it needs to be changed for sure.
And again the bigger part of wanting H1-Bs is that they’ll work a lot harder and turnover will be lower due to threat of having to leave the country.
all i’m articulating is that there are incentives that tech companies like FB have for hiring H1-B over American workers of the same skill level. Is your point that compensation has nothing to do with it and that’s it’s exclusively for other reasons?
What is alleged in the lawsuit seems purely self preservation, if FB doesn't jump through the hoops of getting PERM certified for the employee, they are going to leave and go to another company which does that. (Saying this without making a larger comment on immigration policies of USA)
I knew others who didn’t have such bad situations, but wanted to leave toward better offers and couldn’t due to H1-B and desire to get permanent residency.
Those I knew in the former category put in long hours because of their fear, those in the latter category were having their wages suppressed because of how these H1Bs are structured.
Sure, FB paid the same to H1B holders, but they’re getting a lot out of those folks because they have a harder time jumping ship.
Further, just because FB pays H1B holders the same at each band does NOT mean that H1Bs might not drag down salary for everyone by accepting lower offers. There’s a systemic component to this that ought to be explored.
I truly think you are over-estimating the number of H1-B employees working these jobs in order to have the power to systemically drag down wages for everyone.
> I knew others who didn’t have such bad situations, but wanted to leave toward better offers and couldn’t due to H1-B and desire to get permanent residency.
These situations have nothing to do with FB or any employer at all though. That's just how the H1B visa/green card rules are. That's what is broken.
There are great schools outside of the US; it would be foolish for companies not to hire from there. Keep in mind that if right now I wanted to hire: A smart graduate from EPFL, Polytechnique or ETH Zurich who interned at CERN and has contributed to the Linux kernel for a software engineering job at a unicorn startup
or
A grad from a second tier "technical college" in India with a visa refusal rate of ~90% for a job doing manual UI testing and QA for a body shop
my only path forward is H1. They'll both be listed as "computer related occupations" and apply for the same visa in the same quota. Does that makes any sense to anyone?
In some cases, these companies don't want to sponsor the employee for a green-card, but simply are satisfied with the work being done by the visa-holder, and want to continue to pay for that work. The companies don't want to have to look for qualified local talent every-time the visa renewal comes up.
I can't imagine any sane company would. Hiring people is an expensive process, not to mention the morale hit of essentially firing someone for things out of their control. If i was a company, i too would want to stand by an employee if they were doing a good job.
Not if it meant violating labor laws, no?
I want to sit on my ass and watch netflix all day. I don't actually sit on my ass and watch netflix all day despite wanting to and technically being able to.
I'm fully in favor of immigration (mom is an immigrant and so is my partner), but the H1-B system was obviously designed to create a tier of second-class workers who fear losing their sponsorship and thus tolerate lower wages and worse treatment. These visas need to be fully portable at any time, offered for positions only at above market rates, with greencard queue times also being drastically reduced and made independent of employer sponsorship.
As stupid as it sounds, that's not their decision. It is a part of the PERM process that the employer has to follow. I've started in a different comment here, the rules are extremely outdated.
I believe the relevant section is §656.17 Basic labor certification process Section (f). (you'll have to google it, I couldn't find a good source with a direct link)
It quite literally says "newspapers".
What an absolute mess this whole system is.
They need to fix that and address the root issue rather than force tens of thousands of companies to fire ppl who were working for several years and have a lot of institutional knowlege.
What does it mean to "address the root issue"? This is a platitude because any "address"-ing will have pretty clear winners & losers.
Two, automatic green-card for anyone who completes a four year degree at an accredited US institution.
2. I strongly disagree with this one. The end result will be accredited US institutions effectively selling green cards. If you thought tuition was high before this, think about what will happen after these schools can effectively sell permanent residency to the highest bidders (for prices under the EB-5 investment visa cut-offs of course)
If your argument for it being good is "the money goes to public colleges, which is basically the government!" then the government should just be transparently selling permanent residency without the smoke-and-mirror charade of a "school".
Are you then going to exclude private schools? I would guess that a degree from Harvard is more worthy of a green card, but then why should Harvard get a bunch of "free money" for selling a green card?
US Colleges will still only have a certain amount of capacity. If all of a sudden it comes with a free green card, either 1) less US students can afford to go there, because tuition has risen so much due to "supply and demand", or 2) US students still go there, and end up with even more debt than they currently have.
> Now at least some of the money and gatekeeping would flow through colleges. Especially public colleges, who love foreign students, because they pay full tuition.
With the EB-5 programs (the way to "buy" a green card), you have to invest within Qualified Opportunity Zones which are (in theory) designed to assist lower-income areas, or create a certain number of new jobs (I'm sure there are other investments that qualify too; I'm not an expert on this program).
Having funds go towards these endeavors is arguably "better" than going into the pockets of an already administratively-overloaded university system.
Besides, it's not rocket science that having more talented productive people in your country is a good idea.
Wait, so will this move lower engineers salaries or raise it because they won't have to compete "with an underclass."
The reasoning isn't self-consistent because obviously it will mean lower wages for engineers.
> A lot of positions companies could profitably hire at decent salaries won't ever be filled because salaries of people qualified to do those jobs start above profitability threshold.
This is true of every job. If salaries were cheaper you would be willing to hire more of them.
I'm with you up until this. Lets be real here, if there is enough reform to put H1-B and American workers on "level playing field" in terms of not being abused, American companies are going to look for American workers first (or people who are already on H1-Bs, and can now switch jobs more easily). This is simply because the American worker has the advantage of not having to go through the application process, and of being able to start working right away; the company won't have to wait months to bring the employee on board.
I'm in support of open borders. Somebody wants to enter the country? Do a background check, give them a tax ID and let them in. Everyone is a resident without fear of deportation unless they commit a felony. After 5 or 10 years of residency, anyone can become a citizen.
I realize that's pretty extreme, though, so here's a more conservative reform approach:
End the H1-B program entirely. Just grant people temporary work visas on request after a background check. No company needs to be involved at the beginning. If a person is able to find at least 3 months of full-time work in the first 6 months, they're given work residency.
H1B visa holders are required to be paid the prevailing wage and if this is a big problem, then the DOL can raise the H1B wage to help those threatened with deportation.
I am skeptical that removing the requirement to find local talent first would be a win for permanent residents & citizens.
The "find local talent first" requirement is also pretty weak today if you look into what's actually required. Posting the opening in a local print newspaper satisfies the requirement.
I think it's great someone who comes from an area where US$5k/month makes them extravagantly wealthy can get a job paying $10k/month. More power to them, and good for them for having that opportunity!
Then I think about it in another context. One that considers the huge subsidies (direct payments, defense) the US provides these countries, and in the context of the market wage in the absence of these visa programs. That is, the context in which a US (permanent resident or citizen) worker's already tiny salary negotiation leverage is diminished by the existence of this labor pool. That's not such a great thing, in my opinion.
I work for Facebook in the US on an L-1 visa. I'm currently in the process of applying for permanent residence (green card) through the PERM process targeted here.
The Justice Dept seems upset that Facebook doesn't advertise my job on the careers website. The reason is very simple: FB doesn't want to hire someone else for this job. They're doing the PERM process because they want to keep me.
I know I'm not underpaid compared to my peers. I'm fairly high level and came to FB through an acquisition. I have deep knowledge and ownership of a very specific piece of the tech stack.
It seems bizarre for the Justice Dept to argue that FB should just throw away their investment in me and hire an American instead. How would that help the USA?
It may seem bizarre to you, but that is exactly what the law requires. You're confirming that the DoJ allegations are true.
Don't be shocked if Facebook lawyers don't make the argument that actually breaking this law "helps the USA".
Say I don't get the green card and my visa expires. Facebook isn't going to suddenly hire an American to do my job. Instead they'll just relocate me back to Europe. Team communication becomes harder and USA loses a taxpayer. Who wins?
"We're going to employ person P in country C2 therefore country C1 is losing out to C2 if person P isn't permitted to work in C1."
Therefore all borders must be opened. QED.
Who benefits from having the Justice Dept filing lawsuits to prevent companies from hiring foreign talent? It doesn’t seem to be the American worker, at least.
> “Therefore all borders must be opened. QED.”
This is a strawman that shows you’re an ideologue rather than someone discussing in good faith.
I said nothing about open borders. I’m puzzled why the Justice Dept doesn’t want someone like me applying for the residence, because realistically almost any other nation would consider me an ideal immigrant candidate.
You didn't narrow your argument to net contributors or rich people.
You're perfectly happy with construction workers being turned away, just not rich people.
That's fair. Then we can skip the "I'm a net contributor" argument and jump to "I'm a large net contributor".
So we are very foolish for not having open borders for at least rich people?
Let's say everyone who makes over $200k in the US is permitted to live here. Does that negatively effect the market conditions for anyone in the country?
Then the argument becomes so what if it does negatively effect some people. What right do they have to live here simply by virtue of being born here or immigrating earlier? We're all just humans, it's stolen land, etc.
Now that I’m applying to stay, the Justice Department is suing because my employer doesn’t advertise my job as a vacancy on their website. What sense does this make?
Trump famously asked why the US doesn’t get more immigrants “from somewhere like Norway rather than shithole countries.” I’m from Finland and have employment in the country already. Yet, if we go by your implication that my L1-PERM path shouldn’t be allowed, there’s no legal path for me to stay here, right?
I guess your brand of nativism simply doesn’t want anyone in the country. That will be America’s loss.
"Specialized knowledge means either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures (See 8 CFR 214.2(l)(1)(ii)(D))."
https://www.uscis.gov/working-in-the-united-states/temporary...
Just FYI, the largest users of this visa are body shop consulting companies like Tata, Cognizant, IBM, HP, Deloitte, Infosys. You'll have to forgive me for not being impressed by the entire category of L1 approvals.
Trump and his followers want to shut down immigration while making noises about still letting in “Norwegians who deserve it”, etc. Yet there doesn’t seem to be an actual plan for that anywhere in sight. (I guess that’s a standard pattern in Trumpism — see Obamacare repeal, Section 230 repeal, and so on.)
Why waste people’s time applying for a job that’s not an actual vacancy? If I can’t get the green card, FB isn’t going to fire me and hire an American in my place, they’ll just relocate me to UK or Canada.
> “why do people have such a hard time with the idea of America/Americans trying to protect American interests?”
Because, respectfully, you appear to have put totally incompetent people in charge of doing that. This lawsuit seems to be political theatre that does nothing to protect American interests. To start actually fixing the problem, you might want to look at how Canada handles immigration and get some ideas.
The unions are weak now and full of bleeding hearts who probably do care. But when they cover a representative fraction of software engineers, this is what it will look like. You will stand at a union all-hands and you will look around you and it will look like this, having reverted to the mean.
If you subsume your individual self into the whole, you are then subject to where the whole goes. Read this thread. This is where the whole goes. Semper Vigilo.
What are you trying to say? That commenters here don't like how immigrant workers can be forced to overwork?
They're wrong, of course - companies who hand out $500k/yr to US workers don't underpay visa holders doing the same role. The reason high paying tech companies go international is because their US recruitment funnel is drying up to the point where it's cost-effective to recruit internationally even with the increased overhead. They're not underpaying visa holders, they're using them to avoid increasing domestic wages even higher or lowering their hiring standards, which are different things altogether.
But it's useful to know who aligns with you. And this is a golden opportunity.
All those consulting firms like Tata Consulting Services are gaming the H1B process, middle manning the employees, and in result Facebook, Home Depot, and others hire them for 1/3 or 1/2 less.
I'm talking lawyers and bankers and whatever else you want to throw in the mix
One of these is not like the other. Facebook pays extremely well even for H1Bs, not many come close to it in the industry.
This tells me you have no clue what you're talking about
I used to work in the US at at a large international bank with headquarters overseas that preferred having employees from the same country as HQ. We would advertise a position, internally or just to alumni networks of unis there. Once we interviewed people and knew who we wanted to hire, there would be a delay because HR would have to advertise the position publicly for at least a week (or two, I forgot), and then we could proceed officially with the hire.
Important to note: the allegations, if true, probably only indirectly impacted you or me. In other words, we all failed our Facebook interviews the good ol fashion way - through incompetence - not unfairness.
Or, because they are forced to under threat of deportation. This is only the case because of the un-due power that the H1-B system gives the employer. This un-due power can easily be taken away (by not tying the status directly to the employer, and giving the employee the actual freedom to switch positions).
If the employer didn't have effective-deportation power over an employee, then maybe they wouldn't be able to get away with "reduce[d] working conditions, effective wages, and employment prospects for Americans".
The enemy here isn't the foreign worker. If you're upset with anyone in this situation it should be an employer that is taking advantage of everyone else involved, and managed to put the blame on someone else.
The SWE market (where most H1s are employed) is so competitive that shmucks who run through 3 month bootcamps get 100k+ offers.
The threat of being fired is not as effective as you think it is.
It's kind of a catch22 but that's one reason we have these boot camps / tutorials etc...
I don't think grandparent comment is talking about the situation now, it was a more general comment about H1Bs under normal circumstances being forced to work long hours by employers under threat of job loss.
Hmm. In history, I think this also applied to workers' advocacy of the 40 hour work week.
"Don't blame others you can't do your 70 hour work week. There's plenty of others we have to replace you if you won't."
Regulation was the developed world's answer to a race to the bottom.
The people who work 70hrs a week are people who are ambitious and want to get ahead in their careers - this isn't limited to immigrants in any way, plenty of Americans do this as well and you see this in other high paying fields - Law, Finance, Consulting, Medicine - for some reason programmers are the ones that complain despite being paid equally well.
You don't want to do that? Oh, I see.
Not how labor markets work (:
Other stories I've bumped into:
Trump's executive order - I guess this is now defunct: https://www.theregister.com/2020/10/29/h1b_visa_change/
US Senate moves to abolish per-country visa caps: https://www.theregister.com/2020/12/03/fairness_for_high_ski...
The whole point of H1B is to get smart and talented people to the US.
They will settle and write a small check while admitting no wrongdoing.
Will the Biden administration drop the lawsuit after the transition?
Will this lawsuit be considered when Facebook applies for more H1-B visas on behalf of immigrants?