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.