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Comment by shmatt | Hacker News Reader

Part of the H-1B process is to prove you (hiring company) can't find and equal American citizen to come work for you.

During a downturn in the tech sector, while companies are boasting about "cutting the fat" in their workforce by the tens of thousands. I'd assume it's much easier to find a citizen than it was a few years ago

The companies admitting they over hired by thousands, also includes them claiming they needed immigrants they do not really need.

This[1] article estimates 2,000 of the 23,000 tech workers laid off in November 2022 had H-1B visas. According to the U.S approach to immigration we should all be prioritizing the 21,000 non-visa holders before we try getting people more jobs so they can keep their visa

https://techcrunch.com/2022/11/11/answers-for-h-1b-workers-w...

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It is easy to prove this - just create a requirement combination that is special to your target candidate:

- Software engineer

- Is able to effectively communicate in Italian and French.

- Has 3-5 years of cultural experience in Southern Italy.

- Culinary skills in contemporary Italian cuisine not required but nice to have.

Addition: - Is willing to occasionally cook team lunch.

This worked until early 00s, now a language proficiency can only be required if it's necessary to perform the job. Necessary as for a translator or an editor, not "to communicate with our off-shore team".

If you submit this job description, you would get an RFE (Request For Evidence) to explain why these skilled are requires for the job.

> Part of the H-1B process is to prove you (hiring company) can't find and equal American citizen to come work for you.

This is true for a company sponsored Green Card application, not H-1B visa.

It is true if the employer is considered H-1B dependent[0]. For employers with >51 employees if 15% or greater of the employees are H-1B workers then they must attempt to hire US workers first[1].

[0]: https://www.dol.gov/agencies/whd/fact-sheets/62o-h1b-recruit...

[1]: https://www.dol.gov/agencies/whd/fact-sheets/62c-h1b-depende...

To be clear, this is not the same level as the green card PERM process (which requires jobs be advertised in physical newspapers, etc).

This simply says equally or higher qualified US workers who apply to the same job should be offered the job, but there is no need to seek out US workers.

It does amount to saying if they seek out workers at all, that process needs to include seeking out US workers. At least as I read it.

> employees if 15% or greater of the employees are H-1B workers then they must attempt to hire US workers first

How does this work exactly? Say I am currently unemployed and match the criteria. They post an ad in a paper, I see it and pass the interview. At the negotiation step (because of course total comp is not listed in the ad), I say I will take the job if they pay 2X of what they would have paid to an H-1B if I did not come (again X was never mentioned, it is just the number the company keeps in mind). What next?

They may decline you then.

To hire an H-1B, the company has to do a Prevailing Wage Determination (PWD), where they ask the Department of Labor what an appropriate wage for this a) job function, b) experience level and c) geographic area is. To go forward with the H-1B, they only have to offer that much for the position.

Sounds like a field ripe for corruption.

>> Part of the H-1B process is to prove you (hiring company) can't find and equal American citizen to come work for you.

> This is true for a company sponsored Green Card application, not H-1B visa.

IIRC, that's typically gamed. It's been awhile, but I knew a couple of guys who went through that and I recall they postings "to find an American citizen" were written hyper-specifically in order avoid hiring anyone, and if anyone actually applied, I'd imagine the interview would have been tough with a predetermined outcome.

It's a crappy system. Tests like that should be at the start, not at the end. If they're at the end, it just wastes everyone's time and subverts the test: even if you think the company should hire more Americans, are you going to undermine your coworker in such a way that they may get deported? Is it fair to do that after someone's put down roots? (No.)

The pragmatic albeit unpopular response to that is: Do not put down roots while on H-1B as you are not guaranteed anything yet.

This is true on any visa in any country. It’s like playing “life in expert mode,” dealing with unfamiliar customs, languages, and currencies; all while trying to make a living.

Yes, and that's why the immigrants who make it are the best and brightest. The average ones didn't cut it.

That and many a time the companies do the job postings on things like local newspapers, which no one reads. This way, the companies get to prove that they posted the job someplace, but no one responded to it. USCIS and the DOL don't care either, as everyone gets to show "see, we are following protocol".

Or late night radio ads asking people to snail mail a resume with a specific job reference code. The chances that someone qualified for the job both hears the ad and is in a position to write down an address and reference code are basically nil.

That is incredibly funny.

Probably goes under the category of "bad faith effort" which should lose in court.

Notices are required to be posted in office breakrooms. Now that we have a lot of remote first or remote only companies... how does one see those notices? :)

Because of this exact problem, our company paused immigration for half a year in 2020. Our law firms were concerned that posting notices in an empty office could be considered in bad faith.

Nowadays, it is seen as acceptable to post it virtually, let's say on an HR page on SharePoint, in addition to the physical notice in whatever office there may be. For certain areas we also considered mailing a notice to all employees in the area, but I don't know if that ever happened. The idea is that the physical notice covers the letter of the law, and the electronic notice covers the spirit.

I don't know if DoL has issued any guidance since then, but at the time there wasn't any.

Yeah it is worth pursuing. Other tricks companies play is posting notices in different breakrooms organized by job function.

Living in the US is a privilege not a right until you become a citizen.

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