It does say in the law [1]: "there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor".

The rules of DOL are just guidelines how they are going to determine this but they are not the law. I will argue that if you are planning to publish your job ads in a small town newspaper you do not believe yourself that there are no "able, willing, qualified and available" Americans for your job.

1. https://www.law.cornell.edu/uscode/text/8/1182

You, or the government in this case, should argue that in a court of law. So far, the government has not won any of these cases in a court of law. And I mean over the last 2-3 decades. The number of successful prosecutions will be in single digits. It's a bit like voter fraud when it comes to actual numbers.

"Q Are any PERMs denied for fraud? A Not to my knowledge."

There is a PERM process, the government overwhelmingly approves it, it does not take anything to court or win. I am not sure what you are trying to argue.

[1] https://storage.courtlistener.com/recap/gov.uscourts.mad.266...

1. https://www.federalregister.gov/documents/2007/05/17/E7-9250...

This is misleading. "Fraud" is a legal term, and it's difficult to prove. However, DoL can and will do an audit to verify that the PERM application is correct. If the audit fails (and they fail them often) they just deny the petition.

It's not a large percentage, but nowhere near the "never heard about DoL denying a petition" level.

> Specifically, the department’s investigation found that Apple did not advertise positions Apple sought to fill through the PERM program on its external job website, even though its standard practice was to post other job positions on this website. It also required all PERM position applicants to mail paper applications, even though the company permitted electronic applications for other positions.

Of course court itself could have arrived in different result.

1) The magical 10 year experience resume for a person straight out of college who has never worked a day in his life. Does not know what ssh is, what excel is or anything that any literate individual can figure out on their own.

2) The tens of thousands of consultancies marketing these people on OPT with 10 year experience. Fraudulent interviews, some other person will do proxy interviews.

3) The FTE employees creating dozens to hundreds of contractor positions under them. Interestingly, all of those will be filled by a specific contracting firm.

4) The contracting firm is a Women-Minority-Business owner, usually the wife or sister or sister-in-law of the FTE employee.

5) The FTE employee works assiduously get his relatives more FTEs, together they control a few hundred to a thousand contracting positions. The billing rates will be $100 - $120 to the contracting company, but they pay $40K - $50K for these people straight out of college, pocketing a huge margin.

6) Then, after 3 years, they will file H-1 with a pay of $50K - $60K in a very remote location, because the prevailing wage determination in that location will be $22 - $25/hour for a Computer Analyst.

7) The H4 visa fraud, FTEs spouse gets employed at the same company or a relative/buddys company. These spouses know absolutely nothing, but are hired at a very high wage.

8) The COVID PPP loans fraud.

9) Fraudulent 'employees' because these people have zero skills, they employ another person in a third world country.

Almost ALL of the US consulting is fraudulent. Most of the positions are completely unnecessary. Big companies are just as corrupt and blind as any other govt orgs. And this is happening in state govts too where they are hiring a lot of people in 'tech'. If the US Govt starts pulling the threads, issue subpeonas, they can extract tens to hundreds billions in fines for so many different kinds of fraud.

This is nothing new, has been going on since late 90s. These 'consulting' companies started with Y2K and since then grew exponentially. For a while, there wasn't enough supply of 'degree' holders, but now there are millions of degree holders with zero skills. That leads to other frauds:

1) The fraudulent degree certificates (lots of people can't even clear the 4 year degree in India) used to apply to US universities. 2) Students going to garbage universities and working in malls, doordash, etc. These degree mills and university<->consultancies nexus that guarantee I-20s is another thread.

1. https://www.justice.gov/archives/opa/pr/justice-department-s...

Will be even harder soon to find a small-town newspaper. Because I bet a number were kept afloat by this.

Many companies fulfill the intent of the law. They run a real hiring process — where they advertise online and interview people with work authorization/citizens and people who would require sponsorship.

But if someone requiring sponsorship was the best candidate for the job, then they have to run an additional “fake” process that fulfills these requirements, since no one actually hires tech workers from the newspaper.

Let's be honest they want a captive workforce that depends upon them to stay in the USA and build a life.

There has to be a better way to does not make them captive, and allows Americans to be the first ones, and even after that the priority should be people in North America, even International students.

But the fact they keep hiring mostly and overwhelmingly people from the same five countries that are desperate to come to the USA is an indication these companies are profiting formt he desperation of people.

You’re assuming without evidence that for any given job, that there will be qualified Americans willing to perform that job who aren’t already happily employed. You haven’t established that.

Hell, ask restaurateurs. They frequently have difficult hiring qualified local labor, too, even though the bar isn’t nearly as high as for a technologist, in major cities.

There's no shortage of qualified US tech workers. Microsoft and many other tech companies (cough Accenture cough) abuse this system. They want workers who cannot easily get jobs with another company due to the visa system and will take the lowest of wages.

If I lay off experienced buggy whip makers because the market for horse-drawn buggies is shrinking, and I need to hire experienced aluminum workers instead to meet my customers' demands, it doesn't necessarily mean I can hire the buggy whip makers back for that job. Labor is not necessarily substitutable like that. Not even software developers.

It's also worth noting that companies often use layoffs as a way to efficiently trim the worst-performing labor cohort. They don't do it because they want to hire cheaper labor; it's because they want to let these workers go without the overhead of going through the formal termination process for each one individually.

> There's no shortage of qualified US tech workers.

This statement is so broad it's difficult to evaluate. There might be plenty of US tech workers, and there might be a surplus of US tech workers qualified for some job, but it doesn't necessarily mean they are qualified for the specific job openings.

Speaking from my own experience, my team is hiring several senior SREs, and we're not seeing a flood of qualified candidates. We get a flood of resumes, but the signal to noise ratio is low. The candidates' CVs claim the requisite qualifications, but when we actually evaluate the candidates for role fit, we are finding that their actual skills aren't those we need for success in these roles.

staff SRE here, got a link? :)

This also seems like a bad faith comparison. My team is hiring several senior SREs and we received ~8000 applications for all of the postings combined. Of course the signal/noise is low when you have that many applications to filter through. The takeaway isn’t “the US doesn’t have enough qualified candidates”, it’s “we need a better way to sift through these candidates to find the right ones”

The quirks of individual managers don't matter in this context.

You can offer them more money, better work/life balance, a more fulfilling job, etc. When the government allows the hiring of foreign workers on visas, it's tilting the playing field in favor of employers. Why offer a better wage when you can just cry to the government and get an indentured servant at a discount?

Exceptional talent is a different argument - most H1bs are average at best. Claiming to be unable to hire for an entry or mid-level software engineer job is absurd.

If the qualified workers are already fully employed, how will this result in more of them in the short term?

> Why offer a better wage when you can just cry to the government and get an indentured servant at a discount?

The law requires H1B workers be paid the prevailing wage (20 CFR 655.731), and studies indicate that they're paid pretty close to the average wage (https://www.nber.org/system/files/working_papers/w34793/w347...). If we keep in mind that half of all citizens holding a particular job are paid below the average wage, too, then perhaps the hue and cry over pay is overblown.

Note that there are also plenty of other factors besides wage, eg. 24/7 on-call, working in a remote location, mandatory overtime, etc. Even if an employer actually is paying the market wage for the general job category, there is likely a reason why American candidates are not interested.

No, there's no contradiction. Again, you and others seem to be assuming--without evidence--that for any given job opening, there is an additional qualified local resource available in the prevailing wage band. But that's not necessarily the case. You don't have to take large tech companies' word for it; just ask small business owners around you.

I have a degree in Economics. This is a theory, and theories don’t always 100% match reality at the microscopic level.

> for 99.9% of jobs there are plenty of qualified American candidates who can be hired for the right price.

You keep making the mistake of positing facts that are not established. We’re done.

In this entire comment thread, you have not managed to name a single example of one of these mythical impossible-to-fill jobs.

This is a common argument, but for some reason nobody follows up on that to say: let's not make H1Bs depend on the company. Say, let's give them a 1-year grace period to find jobs if they decide to switch jobs. It's actually the opposite. The 60-day grace period is being challenged. Maybe some people want this reason to exist, compared to other reasons for hiring a foreign workforce.

Although better enforcement is needed and no current system is good for this yet.

Wait, what has North America got to do with anything? Are you trying to smuggle in Canada for preferential treatment?

It's the other way around. The "need" creates the ridiculous requirements. Companies get the laws they want and the laws they want are those that give them an excuse to do what they want to do.

Without running a process how do you know someone requiring sponsorship is, and a correction to language, an adequate candidate for the job.

Why pay to reach many thousands of people with a widely read paper when you can pay pennies to reach dozens of people that you don't want to apply to the job anyway?

This is an entire business model.

“On display? I eventually had to go down to the cellar to find them.”

“That’s the display department.”

“With a flashlight.”

“Ah, well, the lights had probably gone.”

“So had the stairs.”

“But look, you found the notice, didn’t you?”

“Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard.

Douglas Adams, The Hitchhiker's Guide to the Galaxy

was this how those 'free newspapers' back around 2005~2010 worked?

Because the requirement is good faith effort, not exhaustive search. So much of this thread is people not understanding the law. The purpose or the requirement isn't to interview 342M Americans and reject them and only then would you hire a foreign national. People wish that that were the case, but it isn't.

Based on that I would expect that if you advertise in small town newspaper, the job needs to be located in that small town. Want them to work in your big office next to big city, then it must be a newspaper widely distributed in that city not a small town on the opposite side of continent.

1. You choose newspapers that are least likely to actually reach people looking for tech jobs.

2. You post an small ad specifying the role in the most vague and unappealing terms.

3. There is some weird and inconvenient way to apply (e.g., fax- or snail-mail-only) that goes to /dev/null.

You can argue that it follows the letter of the law, but as a practical matter, the outcome is always that there are no US-based applicants for any H-1B SWE role, so something is wonky, right?

Here's one for Android Developer.

Must apply by snail mail.

If only they made a device (with an OS perhaps) where one could apply to such things electronically.

I'm not American and I don't live in the US, and I pretty hate Trump and his allies but this ad is just...wow. I think this is a loophole that should be closed.

So yeah, everyone do that, that's kind of the de facto way of hiring specific people when there is a requirement to post jobs. That doesn't make it ok though.

Any tech savvy person in NYC or SF would not be scouring newspapers for tech jobs and even if they are, they are most likely to be H1B or Greencard themselves.

A small town newspaper may actually make people apply to those roles.

But either way, people who likely to come through these ads can be easily disqualified just by adding a few technology stacks

For instance, what labor laws apply? And who enforces them? And how, given parties in two different countries?

Does the company want to subject itself to some arbitrary country’s tax man or labor law enforcer prosecutions? Does the employee want to work under effectively zero labor protection? Possibly, but rarely.

It’s not even always possible, it’s very complicated to work remotely in France, for instance. The state cracks down on one person one client companies, and EoRs beyond being impractical (as they must adhere to drastic labor laws compared to the US) are in a legal gray zone.

The laws of the worker's locality is generally how it works. In the film industry, a production company based in LA might do a shoot in NYC- they have to follow NYC's labor laws since that's where the workers are and the work is being done.

The workers at the home base in LA have the LA laws applied to them.

>And who enforces them?

The local government.

The company has to adhere to labor laws in foreign countries (most likely plural if this is a general policy). That’s quite the overhead and opens you up to legal trouble.

The employee has to trust their government can prosecute or otherwise coerce a foreign company with no entity on their territory (otherwise they’d just get hired normally through the subsidiary).

LA and NJ remain two states of a common country and I'm sure that simplifies a lot of things.

Although none of this applies if the company is a multinational with offices in the employee’s country. But then that is offshoring rather than remote work.

If you bring them to America you've basically created a worker who is dependent on staying employed with you in order to keep their place

It's a lot less accounting work to have most of your workers in the same state. Imagine single workers or small groups in many different countries.

* same timezone

* easy to verify who is actually working on your system -- on the other side of a B2B VPN you never really know...

Nearly all these ads say "Send CVs to [email protected]" they aren't even trying to conceal what they're doing.

They are wildly out of date compared to how jobs are actually filled. Regardless of any other enforcement actions, this needs to be fixed.

I don't think it even needs congressional approval to change these. The DoL could do it.

(B) Advertisements in newspaper or professional journals.

(1) Placing an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers.

(2) If the job opportunity is located in a rural area of intended employment that does not have a newspaper with a Sunday edition, the employer may use the edition with the widest circulation in the area of intended employment.

(3) The advertisements must satisfy the requirements of paragraph (f) of this section. Documentation of this step can be satisfied by furnishing copies of the newspaper pages in which the advertisements appeared or proof of publication furnished by the newspaper.

(4) If the job involved in the application requires experience and an advanced degree, and a professional journal normally would be used to advertise the job opportunity, the employer may, in lieu of one of the Sunday advertisements, place an advertisement in the professional journal most likely to bring responses from able, willing, qualified, and available U.S. workers. Documentation of this step can be satisfied by providing a copy of the page in which the advertisement appeared.

Edit: And thats not a R vs D thing. The requirements have been this way under multiple administrations, and newspapers have not been a primary way of sourcing candidates for two decades.

lol, I feel old now talking about this :)

This made me look up when the rules about posting in the newspaper went into effect. I was surprised to find that it was 2005. This is much later than I thought. I would have guessed the 90s. By 2005, it was clear that the newspaper industry was dying due to the internet. I guess this is one example of how out of touch government can be.

Someone else mentioned in the thread elsewhere about whether the rules would need Congressional approval. Gemini says that these are purely an agency regulation and the Department of Labor can update them at anytime. It's kind of mind-boggling that no administration has updated them in 20+ years.

Like many things in US law, they have been deliberately ignored as time moves past them to ensure the laws no longer constrain them.

Most governments actually have no difficulty doing "Keeping the lights on" work like updating laws to reflect the times changing. Even here in the US, Republican state governments will have no difficulty keeping the lights on and running day to day tasks, and it usually moves at a reasonable clip.

Another good example of this is any time something comes up that a government body is very very for, it takes almost no time to actually get done. In principle, the turnaround time for a government to react to something can be a single day if necessary. Or less.

But the US Federal congress, explicitly Republicans, has purposely and explicitly and publicly made it a part of their platform to prevent the government from doing anything, including day to day tasks. The modern federal congress does so much less than it used to. On purpose.

Somehow the things that were trivial to do back with ink and quill are suddenly impossible to do in a timely manner. Because it's entirely by choice. Democrats aren't innocent, and are perfectly willing to not do their job when they can get away with it.

- If you apply, you will not be hired, because we're only looking to hire the guy we already have in mind, who we're already working with under some other relationship.

- But, if you apply, that guy also won't be hired, because we proved to be able to fill the role locally.

- This annoys us and him and you.

From a systems perspective (and taking this description as accurate), if people make it their business to apply to those ads, it really will stop companies from using this method to get green cards for foreigners they'd like to employ. The downstream effects are open to question; maybe a given company will employ more domestic employees and maybe it will just keep using the same foreign contractors it's already using.

Not that socialism is inherently bad, but why not just be honest about it and implement it more directly?

Who am I kidding, socialism is the bogeyman doing hero's duty sustaining unrestricted ultracapitalism.

> It doesn't say anywhere that it cannot be advertised in a small town.

What does 'widely distributed' mean if not "not just in a small town"?

I think it is implies in: "The newspaper must be widely distributed in the area where the job is located."

Maybe it's time to rewrite the aged and archaic laws, instead of selectively applying them to a handful of companies...

I have several friends who works in Microsoft and would disagree

American companies are for Americans.

Anyway, I went checking and I wasn't able to find any opening in Microsoft in the Seattle times online version. Which is definitely not a nice optics and would play unfortunately well with the current allegations

In that context, "Widely distributed" really shouldn't be such a complicated concept. What does the NYT charge to run a classified ad?

"Nobody in redmond could do this job!". Cool, did you try any of the other 49 states at all? No? Then go away.

If the rules weren’t designed from the outset to facilitate fraud, they would have required the company to advertise the position in the same places they advertise their other jobs.

I wouldn't default to assuming malice. These laws were written by extremely old people who are still living in the 1950s, where they think the paper boy still rides up on his bicycle on Sunday to deliver the news paper to them, and that's the only way to read about jobs.

I suspect the courts would welcome it.

[1] https://www.jobs.now/blog/unveiling-the-truth-about-h-1b-vis... "The Jobs.Now team has reviewed job postings from dozens of top companies like Meta, Block, Doordash, and Netflix which require unusual application processes like emailing or paper-mailing the application to specialized addresses, or using unbranded separate websites for collecting applications for jobs." + search for occurrence of "Apple" [2] "My understanding is that this is pretty much how everyone does it, no?"

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

Ah yes, the newspaper, the bastion of where all millennial and Gen Z software engineers deign to get their news from in 2026…

Advertising in the Sunday newspaper seems a bit antiquated. I don't think I've looked in a newspaper for a job since the 90s.

I never get a reply via indeed and the rest online.

what can be a reason for an upper limit?

What an absurd carve out seemingly designed to facilitate exactly the sort of fraud being alleged. If you want to argue that you couldn't find qualified local workers one of the basic prerequisites ought to be documenting what the prevailing wage is and openly advertising the position at some small percentage _above_ that rate in order to attract local talent. In all cases the accuracy of that value should absolutely be audited by the government before granting the application.

"We couldn't find any qualified local applicants willing to accept substandard pay and we don't feel up to competing properly" is absolutely not the stated purpose of the program yet the rules apparently cater to that. A complete farce on the part of the federal government.

I forget what they are, but i think its something like "must post 3 notifications of your incorproation in newspapers"