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Comment by 1qaboutecs | Hacker News Reader

I never really understood about PERM. Suppose I am a manager on a team and one of my employees is going through the PERM process.

I'm supposed to put out a job advertisement (but the job isn't real) for my employer. If an applicant passes the interview process, I don't have to hire that person (I probably can't - I don't have budget or permission from the organization). But I do have to honestly say if they have all the required skills -- I'm not permitted to say "wouldn't be a culture fit."

Nor do I have to fire my employee. But maybe my employee won't get a green card six years down the road.

1) Do I have any details wrong here? The one time I talked to a law firm about this they more-or-less refused to state the above outright, but answered all questions in this direction. 2) Doesn't this seem disrespectful to, among others, the applicants to the fake job?

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I think everyone would agree that the PERM process is an awful process for both applicants and for employers. The job is supposed to be treated as an open position and the recruitment is supposed to be done in good faith. So, if a qualified, willing, able, and available U.S. worker applies for a PERM job, the employer either must hire this person or terminate the PERM process and wait at least 6 months before restarting it. Now, where there are multiple openings for the position, then it's possible for an employer to hire a U.S. worker without terminating the PERM process for the foreign national employee.

It is well known at the companies that I've worked for that there is no good faith at all in the process and it's basically ritual to justify the application.

Since they are clearly violating the law, how can I report this?

The government agencies involved are the DOL and USCIS so you would report abuses/violations to them.

If they've complied with the DOL regulations and requirements, what makes you think they're violating the law?

Explicitly and openly not acting in good faith.

That is your contention though. The government needs to prove that in a court of law that they are violating the statute or the regulations.

Oh come on, are we seriously acting like jobs building out react components or java endpoints are remotely complicated and not a skill that could be trained within 3 months?

It's a fairly well-founded contention eg [1][2][3].

Here's a problem I often see when technical people, particular engineers, try to analyze legal issues: they tend to look for technical compliance (or noncompliance) or use standards like absolute proof but the law simply doesn't work that way.

Legal decisions tend to come down to things like witness credibility, a holistic view of the facts and whatever evidence standard is being used (eg preponderence of the evidence, beyond a reasonable doubt, clear and convincing evidence).

An example I like to use is back when prosecutions for downloading something illegal were more in the news. A technical person might argue "an IP address doens't mean anything. It could've been anybody". But the law will look at the totality of the evidence (eg browser history, time when it happened, were you home at the time, whether such media was found on your PC, etc. And the way the Rules of Evidence work, you might not even be able to suggest certain alternative theories (eg "my Wifi was hacked") without evidence.

Another good example is sponsoring someone for a marriage-based green card. You need to be in a bona fide marriage and you'll get people who will look for technical compliance. Is having a joint bank account enough? Photos? A joint lease? Filing a joint tax return? Those are some of the factors USCIS uses but no single factor is sufficient. USCIS will look at the totality of the evidence in determining if a marriage is bona fide.

so back to PERM abuse, arguments like "we made an error with the email address" or "we accidentally lost some US citizen applications" or even "we complied with the technical requirements for advertising a position" may not carry the day because the totality of the evidence may still amount to immigration fraud.

Lastly, it should be noted that a lack of a prosecution (yet?) is not proof of legality or compliance either.

[1]: https://www.theregister.com/2026/04/28/cloudera_doj_employme...

[2]: https://www.justice.gov/archives/opa/pr/justice-labor-depart...

[3]: https://www.mondaq.com/unitedstates/employee-rights-labour-r...

>it should be noted that a lack of a prosecution (yet?) is not proof of legality or compliance either.

Prosecution or lack of prosecution in this area are both political. The previous DOJ also sued SpaceX for not hiring asylees. I am not aware of an actual court victory. These tend to settle out of court and both sides get to claim victory and make headlines.

>they tend to look for technical compliance

I'm taking a more holistic view here, which is that the whole thing is so farcical that enforcing compliance here does more harm than good. Look at the operation that chained Hyundai workers and deported them for a photo op. What did it achieve? It created a diplomatic incident, the battery plant stopped producing batteries, and the state lost tax revenue.

>Those are some of the factors USCIS uses but no single factor is sufficient.

That's a whole different can of worms. There is endless litigation over things that USCIS does in its infinite wisdom. Fortunately, we have the APA and Loper Bright overturned Chevron, so it should restore some sanity to it.

Aside: >prosecutions for downloading something

There is no real prosecution for downloading. It's only uploading. The technical definition is the same as the legal one. The way DMCA prosecution works is that if you are in a torrent swarm and are uploading, you are distributing content, which is easier to prove under copyright law.

This is a wild claim. It is very difficult in US law to prove this claim.

> The job is supposed to be treated as an open position and the recruitment is supposed to be done in good faith. So, if a qualified, willing, able, and available U.S. worker applies for a PERM job, the employer either must hire this person or terminate the PERM process and wait at least 6 months before restarting it.

The "or" part in the last sentence is worth noting. At the place I've worked, the employer invokes the second clause (i.e. PERM process is canceled/suspended, and they try again 6-12 months later).

The way it worked there was: Employer publishes an open req. We get lots of resumes. Manager calls the few people who may be a match. Then the manager has to justify why the person doesn't have the skills and the process continues.

Sometimes (and this is likely a bit random), the government does an audit, where they get the details of all who applied. Then they call the manager and start grilling him on why a particular candidate was rejected. If the manager can convince them, the PERM process continues. If not, they fail the Department of Labor Certification and the PERM process is canceled.

The person doesn't lose his job. They're just ineligible and need to apply again after a certain window.

I do know folks applying for PERM who were rejected twice because of this. The insane thing was that their roles (EE with specific specialty) were legitimately hard to fill, whereas other people in the team doing trivial scripting easily got through PERM.

The process is messed up in many ways.

Generally lawyers need to be involved to make sure any rejections are compliant. There's a whole cottage industry around this.

Personally, given the state of unemployment in the tech sector right now, I think it should be virtually impossible to fill a PERM right now because pretty much any position could be filled with a US LPR or citizen and the only reason it isn't is because the whole process is deliberately obfuscated or artificial barriers are put up purposefully to disqualify candidates.

I also think that doing layoffs in the US should disqualify you from doing any PERM or sponsoring any visa for 2-3 years.

> I also think that doing layoffs in the US should disqualify you from doing any PERM or sponsoring any visa for 2-3 years.

This is a very SW mindset, and makes no sense in other circumstances.

If my company canceled a large SW project, and laid off a lot of SW folks, why should that prevent them from sponsoring someone to work on nanoelectronics?

In this day and age where every company is playing _very_ fast and loose with their LPR/citizen employees' lives and livelihoods, yes, I think PERM should be a very strict and easily lost privilege across the board for the whole company, not a right. If we had sane employee protections in this country maybe my opinion would be different.

I have been both on visa side of things and LPR/citizen side of things. I don’t understand this mindset lpr|citizen>>perm|visa. As if the perm/visa individual has no life and can easily pack a handbag and leave tomorrow. Not defending any processes here just pointing out people (perm or not) buy homes/cars have kids in schools etc and by the time they get to perm process they are pretty much ingrained here. The viewpoint of ‘discarding’ batches of perms sounds very hypocritical.

It's not about you, you're just an unfortunate individual caught in the crossfire, and in some ways I am sorry about that. However I think it's important for countries to look after their own citizens first before foreign peoples who want/have a job here. Yes, you may have made many efforts to integrate permanently, but if you're not on a permanent status yet, then those are choices you always made knowing you're still on a temporary status. It's not hypocritical at all.

Edit: I want to say that I am not saying this from a place of no compassion, however harsh my opinions may seem. I have multiple close friends that are not LPRs/citizens yet and have been the shoulder to cry on when things go sideways. I empathise, I do, but my opinion remains the same that countries should look after their LPRs/citizens strongly first.

> why should that prevent them from sponsoring someone to work on nanoelectronics?

Because companies should be held accountable when they make mistakes in hiring. The employees shouldn’t have to bear the burden of their employers mistakes.

If the penalty for hiring too many people for the wrong job role is being barred from hiring people ever again even for a different job role, then companies are just not going to hire people in the first place.

Uh because they are mot children? You cancel a project that was ill conceived, and we are to believe the second one is not also ill conceived?

Yes, if aren’t being responsible with your hiring then you don’t get to mess with the talent pool. People aren’t automatons.

you comment ironically is sw mindset ..well akshually.

everyone knows the gotcha you are think you have uniquely discovered. ppl are just tired of the whole thing and want absolute rules that are easily understood and transparent.

Since we are doing wishes and grievances, why have PERM at all?

The specificied purpose of PERM is to to fill a position that otherwiswe can't be filled by a US LPR or citizen..

If you need to hide your job postings on an internal physical caulk board in a basement and post them in only physical copies of The Columbus Dispatch then it should be pretty clear you're not following the spirit of the program. If, even after doing that, you then disqualify candidates for pretty fake reasons and you somehow still have qualified candidates so you pull the position and try again in 6-12 months then you should absolutely fail a USCIS audit and you should lose your privileges for hiring foreign workers and sponsoring people for residency, at least for a time.

Legitimate employers and jobs can't get a visa in the H1B lottery because of widespread visa abuse. People from certain countries (particularly India) have to wait 10-15+ years because of abuse of the system. Fake employers with H1B schemes, bodyshops that really pay below prevailing wage and can keep Indian-born people as effectively indentured servants, spamming the system with H1B applications because they don't really care how many they get.

We're in permanent layoff culture now where pretty much every sufficiently-sized employer will probably fire 5-10% of their staff every year while still hiring people. This is to suppress wages and make people do more work for free. There should be a cost to this.

If you're an immigrant, a completely arbitrary layoff can be devastating. You have a short period to find a new job and if you don't, you have to leave the country. Employers who will do that to immigrants shouldn't be alloweed to hire immigrants.

You can be both pro-immigration and anti-immigration abuse.

> People from certain countries (particularly India) have to wait 10-15+ years because of abuse of the system.

Well, the abuse is mostly happening for the benefit of people from India.

But yes, it sucks that the "good" people from India have to wait a long time because of the system being abused to get the "not-so-good" Indians.

Keep in mind, though, that you're conflating H1-B with PERM. There isn't a 10-15 year wait for H1-B.

You are conflating several unrelated issues. In your previous post, you expressed how you wish PERM worked ("I also think that doing layoffs in the US should disqualify you from doing any PERM or sponsoring any visa for 2-3 years."), to which my response was why have PERM at all. You are still talking about how you wish the world worked. There are a lot of shoulds in your reply. PERM, H-1B, etc. all exist as a carefully brokered compromise bw different factions that want different things. It is the correct amount of broken by design. Posting in a Sunday newspaper is a requirement in the regulations. Everyone is in the right amount of compliance to maintain equilibrium. There are any number of things that could be or should be, but aren't.

isnit right to call it abuse?

certain employers can use h1bs to fill specific employment needs really well, and have a ton of experience with both sourcing foreign labour and matching it to work that needs doing in the US.

its doing exactly what the program is looking for, filling a labour quantity at the price employers are looking for.

The US government is optimizing for being able to do some volume of technical work, and the the h1 is intended to make sure that the industry isnt limited by labour availability. its not particularly abusive to do that in an efficient way where the same h1b can serve many businesses

the alternative thats coming is going to be moving a lot of the work to india and instead having the local engineers be liasons for where the real work is happening

people in india havw to wait long periods because the green card system of country limits has no per capita normalization, not because of h1 visa abuse. its sheer volume of good people working for american companies in america, wanting to stay in america. Your anti-abuse metrics will bring it down from 15 years to 13 or 14. not a meaningful difference

Nothing will convince me that the likes of Tata and Infosys are a good use of H1Bs. And because they flood the system with H1B applications, other actually valuable positions go unfilled.

If the customers for these bodyshops could save money by outsourcing directly to India, they would've already.

And beyond those big bodyshops you have any number of smaller H1B fraud schemes eg [1][2][3][4].

If you're Indian-born and are waiting 10-15+ years for your green card then you should be mad about these companies because they're making your life more difficult.

> The US government is optimizing for being able to do some volume of technical work, and the the h1 is intended to make sure that the industry isnt limited by labour availability

First, I disagree with this claim. The US government is optimizing to suppress wages.

Second, when there's significant unemployment in the sector then there is by definition availability. It further goes to my argument that the main purpose is to suppress wages.

[1]: https://www.justice.gov/usao-edca/pr/east-bay-men-plead-guil...

[2]: https://timesofindia.indiatimes.com/world/us/h-1b-visa-fraud...

[3]: https://www.justice.gov/usao-nj/pr/executives-staffing-compa...

[4]: https://www.kron4.com/news/bay-area/sunnyvale-man-to-serve-1...

>when there's significant unemployment in the sector then there is by definition availability

Humans aren't fungible.

> If the customers for these bodyshops could save money by outsourcing directly to India, they would've already.

I worked for a company that did this. They had no H1Bs but did have an Indian subsidiary. The problem is you only get the third tier workers who can't make it into the body shops. Plus you have to deal with the time disparity.

There is no legitimate reason to allow body shops to participate in the H1B program. They aren't creating the jobs that need to be filled. They're just parasites who are responsible for the majority of the fraud.

    > I also think that doing layoffs in the US should disqualify you from doing any PERM or sponsoring any visa for 2-3 years.

I am sure this would have terrible second order effects. This does not sound well thought out. Also, many companies are so large that in parallel one part might be shrinking (or a division closing) and others might be growing. It is not always possible or reasonable to internally transfer 100% of laid-off staff.

If the company is that large, I am sure they can figure it out.

Sounds perfectly thought out. They could be cross trained, etc. There’s always options.

I'm convinced people who say this:

> given the state of unemployment in the tech sector right now, I think it should be virtually impossible to fill a PERM right now because pretty much any position could be filled with a US LPR or citizen

are crazy deluded about the quality of the average US citizen software engineering job applicant vs the quality of the person doing that job. Or you haven't ever actually done hiring for a big tech company (who use most of the H1B and perm processes).

I'm not saying Americans are dumb. But the average CS graduate from an average or low tier college in the US (of which there are many many many) is not as good of a hire as the average int'l MSCS degree holder. There's obvious statistical reasons for this: namely the int'l is likely richer in his/her country than the average US citizen is here bc that person can afford to pay for a degree here and move here and get in here.

But this perspective treats these jobs as if they are factory jobs that as long as the position is filled, money can be made and that's not true in software engineering. The quality matters and it's one of many things the PERM process wasn't built to handle and which also many people don't understand who haven't done this hiring process

> the average CS graduate from an average or low tier college in the US is not as good of a hire as the average int'l MSCS degree holder.

That is an abjectly insane statement. The quality of higher education varies massively throughout the world outside the US, just as it does within the US.

It also assumes that education in computer science is sufficient to become employable in the technology sector, which is in and of itself patently untrue.

It's not insane.

Yes education quality in the rest of the world can be bad also, but the people in the rest of the world who are able to immigrate to the US are richer and thus generally smarter, which accounts for that.

Yes I don't agree with the assumption you stated at the end, but many claiming we should stop H1B or disallow PERM think that's enough to be employable

> Generally lawyers need to be involved to make sure any rejections are compliant. There's a whole cottage industry around this.

That's why most PERM job postings are advertised in the classified ads of the print edition of a newspaper, instead of anywhere that anybody actually looks for jobs in the 21st century. If nobody applies, nobody needs to be rejected.

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