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When U.S. workers did apply, the suit said, Facebook hired them into different jobs, reserving the open position for the H-1B worker.

For what it's worth, as an ex-FB engineering manager, this isn't how Facebook works at all. 99% of software engineers are not hired into an "open position". Facebook hires all software engineers that pass the hiring process without regard to whether they are US citizens or not. Then, after starting work for Facebook, there is a trial period where software engineers figure out what team they are going to work for, usually working a bit on a few different teams.

Unfortunately, immigration law seems to be written by people who had no familiarity with how modern large software engineering companies operate. Tech companies are essentially forced to make up "positions" for the purposes of immigration law. This makes the law pointless, except for the occasional fine for not obeying the meaningless rules precisely enough, which is just the cost of doing business.

There is just no way to make a company "first consider US citizens for every open job" when you don't hire one person at a time for separate jobs. What does that even mean when you are trying to hire 100 people a week, and you just want to hire the 100 best people you can find every week? This law fundamentally has an incoherent goal.

> What does that even mean when you are trying to hire 100 people a week, and you just want to hire the 100 best people you can find every week?

That if over 100 Americans apply, “the 100 best people” needs to come from that group — not immigrants on visas which require a lack of American applicants.

> This law fundamentally has an incoherent goal.

I think you don’t like the goal.

It's hard for law to cover all edge cases. Your comment about "modern large software engineering companies" seems to apply to 5 or 6 companies with enough profit to hire as many people as they want even if they may never use them for anything as a talent hoarding strategy, in contrast to the thousands of companies out there that still mostly hire to fill specific positions.

This specific regulation was finalized in December 2004, so yes, it obviously could not have taken Facebook's specific hiring practices into consideration given Facebook hadn't even existed for a full year yet and I think had 6 employees at the time.

You can certainly argue the law needs to change, but man, good luck. There are a lot of other aspects of immigration law that need to change with higher priority than this, but it's a political minefield that candidates love to campaign on but Congress won't actually touch with a 50 foot pole. Until then, I don't think the Department of Labor has much choice but to enforce the law as it exists today. It isn't up to them to change it.

> Unfortunately, immigration law seems to be written by people who had no familiarity with how modern large software engineering companies operate.

Not really sure with how requiring "modern large software engineering companies" to hire qualified US citizens before hiring foreigners is somehow a burden to said companies. How is it harder to skip the H-1B process than to hire one of the US citizens?

> Tech companies are essentially forced to make up "positions" for the purposes of immigration law.

If you don't have positions, why are you hiring? They aren't sitting around twiddling their thumbs just collecting a paycheck, are they? If you don't know where the H-1Bs are going to be, how do you know a US citizen is not qualified for the position the H-1B ends up in?

> There is just no way to make a company "first consider US citizens for every open job" when you don't hire one person at a time for separate jobs. What does that even mean when you are trying to hire 100 people a week, and you just want to hire the 100 best people you can find every week?

Um, you hire the best 100 US citizens and forget the H-1B process? Is it really that difficult? If you have a specific position which you can't seem to fill, train someone? Still can't fill it, then go through H-1B? How/why is hiring via H-1B the default? That is the baffling thing.

> This law fundamentally has an incoherent goal.

Really? It seems pretty clear the intention is to force companies to hire US citizens when there is someone which can fill the position. When the position is "best people you can find", how can you argue a US citizen does not fulfill the requirements?

I think you're missing the point that there is no H1B being "hired over" a US citizen. Facebook, and most other FAANG at this point, are going to hire everyone that they reasonable can.

In the current environment, if you work in tech, and don't have a job at Facebook/FAANG, there is a reason. There are tons of possible reasons. An immigrant "taking your job" is definitely not that reason.

When the position is "best people you can find", how can you argue a US citizen does not fulfill the requirements?

Because the 100 best people you can find aren't all US citizens, when their citizenship isn't relevant to the job. This law (and common sense) permits companies to hire for a highly paid job and to make the requirements so demanding that you have to look outside the US to hire enough people. That's exactly what is happening at the large "good" tech companies like Facebook or Google, and the same is true down to the mid size "good" tech companies like Airbnb or Stripe.

The real abusers of the immigration system are companies that are not bringing the best and brightest to the US, they are just trying to recruit immigrants so that they can offer lower wages.

To add - when this process fails, tech companies rotate employees out to a remote office (often in Canada). The US loses tax money which the employee would have paid and the position remains filled.

I'm not disagreeing with you on your comment at all, but the "much demonized H1 process" was legitimately abused by a lot of bad actors who violated the spirit of the visa (talent you can't find in US) in pursuit of simply using it to hire at a lower rate a captive employee who you can freely exploit.

I was at a company that abused it, and we were hiring DBAs whose entire job was to administer MS SQL server. There were plenty of people locally who could do this, but none who were willing to work 70 hours a week for the very average salary.

The US government wasn't even sharing any data on the visas publicly until the Trump administration forced them. Once the data was public, it was blatantly obvious as to why they hadn't shared the data before. Wipro, Cognizant, etc were hogging the H1Bs for labor arbitrage purposes, making it hard for people looking for actual rare talent to get anyone in country. I had a friend from Pune who was stuck waiting in India for 2 years (an amazingly talented ML engineer) due to us not being able to get him a visa while Wipro was stealing them all in the same region for their labor arbitrage business.

> > When U.S. workers did apply, the suit said, Facebook hired them into different jobs, reserving the open position for the H-1B worker.

> Is this discrimination? Yes.

It's fairly common practice to hire for the expertise and fit for the position. How is this different in that regard?