>It doesn't say anywhere that it cannot be advertised in a small town.
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.
“Must be widely distributed in the area the job is located” kinda limits the small towns that can be used. Not to mention the increasing difficulty of finding a small town with a newspaper.
FWIW this is rarely checked during PERM, e.g. in the DOJ statement posted in a sibling comment tree[1] they ran an investigation to find that Apple did not post their PERM jobs on their website. DOL happily approved those PERMS despite such an obvious conduct to limit the number of applicants for a job. And, when found, only Apple was slapped with a 25M settlement (which is profit Apple makes over couple of hours) - nobody in DOL who approved those PERMs had been punished.
The DOJ prevailing wage certifications are a joke. The same people who say advertising a web developer job in the sunday paper is sufficient notice also say if what you’re paying for that web developer is market rate.
> “Must be widely distributed in the area the job is located” kinda limits the small towns that can be used. Not to mention the increasing difficulty of finding a small town with a newspaper.
Will be even harder soon to find a small-town newspaper. Because I bet a number were kept afloat by this.
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.
Which cases? What prosecutions? Are you seriously saying that there are no qualified, willing and available workers for random PM or front end jobs and only this particular Indian person, who just graduated from an American college a few years ago is the only one who is able to do the job? I'd love to see a single case like this, got any links?
The cases where the government has proved in a court of law that a company is in violation of the statute or regulation. I am not aware of any successful prosecutions here other than maybe Cognizant which was in the news some time ago.
What prosecutions of the 8 U.S.C. § 1182(a)(5)(A)(i) do you mean? It's a clause that says that aliens looking for a job are inadmissible unless there are no qualified, willing and available workers as certified by DOL. It is not prosecuted, aliens are just not admitted. But if you have seen it being prosecuted somehow I am still waiting for a link.
PERM is approved at a rate in high 90s. The government - this government - has approved PERM for all these corporations that it is slandering now. Here's a deposition from a DOL employee [1]:
"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.
> "Q Are any PERMs denied for fraud? A Not to my knowledge."
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.
Well, yes. That's because the majority of PERMs are well-documented. It costs a lot to go through the process, so companies don't bother with weak applications.
I'm confused then. What are you trying to say? I am claiming that there is no meaningful fraud, misrepresentation, or abuse; everything is happening by the books with > 90% approval; things are working as designed and present theatre is political theatre for midterms.
You claimed that government does not successfully prosecute this, implying it prosecutes and fails. If you wanted to say it does not prosecute then you should just said so when I asked what prosecution did you mean. Also what are you arguing here? We both agree that inadmissibility does not require prosecution, so what's your point again?
No, I never implied that they fail. They do not prosecute or deny any PERM certifications. PERM is anyway not tied to inadmissibility of an alien as PERM is an employer driven certification process. Recall that PERM is administered by the Dept. of Labor. Specifically for PERM, they need to prove in a court of law that the company is violating civil rights, labor laws, discriminating against a protected class, doing fraud, etc. They do not do that at the administrative level (by denying PERM) or at the judicial level (by winning a court case). All they do is make speeches on the campaign trail, and occasionally settle out of court as some other sibling comments' examples in Apple, META, etc. show.
Okay, then I read you reply wrong and have no idea what are you trying to say. The law I quoted is about inadmissibility, PERM is a process to create an exception for an inadmissible alien as described in the law. Recall that the exception is created via DOL certifying that there are no sufficient able, qualified, willing and available workers. PERM is a way to conduct this certification. Read my first message you have responded, it has the link to the law. I am also not sure what you mean by this "They do not do that at the administrative level (by denying PERM) " because the news item you are commenting under is exactly about the blanket PERM denial.
Yes, the present blanket ban is unlawful which will be overturned by the courts as arbitrary and capricious (similar to tariffs, 100k fee, and countless other things that this admin has done). I mean that historically PERM approval rates have been above 90%.
That's, like, your opinion, dude. For what it's worth, these bans are routine and had been issued many times before, none was declared "unlawful" by an actual court, nor it had been overturned. Usually what takes for the ban to be lifted is the company getting into compliance with the law and stopping the cute "nobody told us we should not ad in the Podunk Monthly Herald, we honestly thought this is the best place to source PMs!".
This is just textbook APA stuff. There is no such thing as a legal blanket ban. The executive does not have the authority to do any of this. And I will bet my money that MS has been following the law. Hopium and copium are free though, so I can't stop you from smoking it. The most likely outcome here is again a settlement after the midterms and some money thrown at Trump or Vance.
And the APA passed in 1946. What you are pointing to is regulation. And Chevron was overturned recently. There is no jurisdiction review bar for PERM. I am willing to bet actual money that MS will win at trial or it will be settled out of court like everything else.
Again, I am not following, are you now saying that the debarment list for PERM does not exist or it's unlawful and will be overturned by courts any moment now, 19 years later? Well, as you said, nobody is going to debar you from smoking hopium and copium.
The present unilateral action of banning MS from using PERM is unlawful as MS hasn't broken any laws. (PERM has its own cooldown mechanism of timeouts after layoffs. I'm not talking about those.) If the US government bars MS on any grounds of fraud, abuse, misrepresentation, etc., or if the US government tries to claim that they have the power to unilaterally ban PERM for MS, they will lose in court or settle. We can revisit this in a few months.
Good, now you went from the "There is no such thing as a legal blanket ban. The executive does not have the authority to do any of this." to "MS will settle". It sure will, as all other targets of this action.
> 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.
Yes, they all settle out of court. Everybody makes money and headlines. Companies write it off as the cost of doing business, politician uses it on the campaign trail. Biden sued SpaceX because they weren't hiring asylees. Same shtick.
Once the Govt really starts looking into it, the whole thing of dozens of layers of fraud will unravel. US Govt has multiple catch all laws to cover any kind of fraud.
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.
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