America last: Is Big Tech hiding jobs from US citizens to hire cheaper foreign labor from India and China?

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Reports indicate that the American tech job market is slowing down significantly, making it increasingly more difficult for qualified individuals to find employment. However, a team of technology professionals contends that jobs are out there; they are just not being advertised to American talent.

The Economic Policy Institute found that the top 30 H-1B employers hired 34,000 new foreign workers in 2022, yet laid off at least 85,000 between 2022 and early 2023, further fueling concerns that companies are booting Americans for foreign nationals to keep wages lower.

'We were shocked to discover these discriminatory practices are still widespread across major American companies today, keeping Americans out of jobs in their own country.'

Indian nationals accounted for roughly 71% of H-1B workers in 2024, while Chinese nationals ranked second, with 12%. Indian and Chinese nationals also represent the largest groups of foreign-born STEM workers, according to the American Immigration Council.

The background

Reports like this sparked action from fed-up tech workers who decided to establish Jobs.Now, an online job board featuring a list of positions sourced from "legally mandated PERM labor market test locations" in newspaper classified advertisements.

PERM is a permanent labor certification issued by the Department of Labor, allowing employers to hire foreign talent to work in the United States. This certification sets workers on a path to receive a green card. Many of these candidates are already working for the employer on temporary visas, such as the H-1B or the Optional Practical Training programs.

The tech workers were driven to start the online job board after Apple and Facebook settled worker discrimination lawsuits with the Department of Justice.

In 2021, Facebook agreed to pay $4.75 million in civil penalties and up to $9.5 million to eligible victims after it was accused of “routinely” refusing to “recruit, consider, or hire U.S. workers” for positions it had reserved for temporary visa holders.

Similarly, in 2023, Apple agreed to pay $6.75 million in civil penalties and establish an $18.25 million back pay fund for victims after the DOJ claimed the company “illegally discriminated in hiring and recruitment against U.S. citizens and certain non-U.S. citizens.”

Photo by Robert Nickelsberg/Getty Images

“We were shocked to discover these discriminatory practices are still widespread across major American companies today, keeping Americans out of jobs in their own country,” Jobs.Now told Blaze News. “We started Jobs.Now to fight against these illegal practices and help Americans find good jobs.”

Sneaky tactics

Jobs.Now warned that some companies — particularly those seeking to fill engineering, data science, finance, accounting, and biotechnology positions — will try to hide opportunities from American workers to favor their existing H-1B employee and provide lower wages.

Under PERM laws, a company seeking to hire a foreign national must demonstrate "that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers."

To demonstrate this, the employer must advertise the position in two Sunday newspapers and select three additional recruitment steps, which can include advertising the position at job fairs, the employer's website, an online job board, and on radio and television, among other options.

'Jobs.Now highlights those ads, but that doesn't mean the company is running a new search. It's just about meeting the compliance rules.’

The employer can hire a foreign national via the PERM process only if there are no other minimally qualified U.S. citizens or existing green card holders available.

"As a result, they put ads in newspapers with obscure application methods aiming to hide the listing from Americans, so they will not receive applications and will be able to sponsor their preferred immigrant candidate for a green card to fill the job," Jobs.Now told Blaze News.

Jobs.Now explained that it has found some job postings that feature "hidden" characteristics — including "not being posted on the company website, not being posted on mainstream job boards, and requiring email or paper mail applications" — that could result in fewer American applicants.

Jobs.Now has also highlighted postings that refer individuals to send their applications to immigration professionals and law firms, rather than human resources workers.

"To maintain business continuity, or the wage arbitrage of hiring lower-paid immigrant workers, companies prefer to keep these existing employees rather than seek American citizens as required for permanent roles," Jobs.Now stated. "They commonly treat PERM labor market tests as compliance exercises where they fill out paperwork, rather than actual hiring processes. As a result, they often direct applications to immigration professionals or law firms rather than ordinary recruiters."

Photo by Joe Raedle/Getty Images

Clashing views

While Jobs.Now highlights the labor market tests as being treated as mere formalities rather than genuine efforts to recruit American workers, recruiter Mark Fabela affirmed that these postings are meant to satisfy regulatory requirements and are "not about launching a broad hiring campaign." Though, perspectives differ on whether this complies with the law.

"Instead, it's about documenting for the Department of Labor that no qualified U.S. workers stepped forward during the recruitment phase. That's why you see the mandated postings in newspapers and other outlets," Fabela told Blaze News. "Jobs.Now highlights those ads, but that doesn't mean the company is running a new search. It's just about meeting the compliance rules."

"By the time these ads appear, the role is often already filled by someone, usually an H-1B worker the company is already employing," he said, dismissing Jobs.Now's claim that the posts aimed to hide jobs from Americans.

‘Only after no US worker can be found will the PERM application be approved. Whether the foreign worker is already performing the job is immaterial.’

However, other experts challenge Fabela's perspective, asserting that the law requires genuine efforts to hire Americans, even through the labor market tests posted in the newspaper.

“Employers must conduct good-faith recruitment of U.S. workers and offer that position to any qualified and willing U.S. applicant,” Dr. Ron Hira, an associate professor in the Department of Political Science at Howard University, told Blaze News. “Only after no U.S. worker can be found will the PERM application be approved. Whether the foreign worker is already performing the job is immaterial.”

Hira called the law “crystal clear” but noted that even the DOL “has been guilty of administrative malpractice in enforcing PERM regulations.”

Photographer: Krisztian Bocsi/Bloomberg via Getty Images

“For the past few decades, DOL has turned a blind eye to rampant employer discrimination against U.S. workers in the PERM recruitment process,” he explained. “Everyone, including DOL, knows that discrimination is more common than not in PERM applications.”

The DOL admitted in a 2020 report that the PERM program “relentlessly has employers not complying with the qualifying criteria.” It also stated that it has “limited authority over the H-1B program as it can only deny incomplete and obviously inaccurate applications and conduct complaint-based investigations, challenges in protecting the welfare of the nation’s workforce.”

“Therefore, the PERM and H-1B programs remain highly susceptible to fraud,” the DOL concluded.

Hira called for Americans to petition the Trump administration “to start enforcing the plain language of the law.”

‘Americans don't have a real shot at these jobs; they were already displaced long ago when the employer hired the worker on a temporary visa.’

Jessica Vaughan, the director of policy studies for the Center for Immigration Studies, echoed Hira's concerns about enforcement failures, calling the PERM process “a charade.”

“The reality is that nearly all of these employers already have a foreign worker in the job and are just seeking to check off the boxes that the law requires,” Vaughan told Blaze News. “Americans don't have a real shot at these jobs; they were already displaced long ago when the employer hired the worker on a temporary visa.”

Congress fueled some of these issues by adjusting the eligibility criteria for green cards to more closely align with those for temporary visas, Vaughan explained.

“That means there are more temporary workers now seeking to get green cards to stay permanently, and they are willing to work for less money on that promise. However, they have a long wait for the green cards, and the employers don't want to have to consider Americans for these jobs, since they promised them to the foreign workers, and they can get away with paying them less,” Vaughan stated.

Concerning any “good faith” efforts to find Americans to fill these positions, Vaughan reasoned that there is “little enforcement of the requirement” because employers have found ways to circumvent rules.

Fabela acknowledges that issues exist within the current process, including a lack of modernization with the print newspaper ad requirement. He also noted that some job requirements are so "overly narrow" that they "effectively match one candidate's resume." The most concerning issue is "wage-level manipulation," according to Fabela.

"Bad actors will write dumbed-down job descriptions in a way that understates the role's actual skill level. That allows them to pay experienced candidates significantly less while still clearing the prevailing wage test," Fabela told Blaze News.

Jobs.Now also highlighted issues with the manipulation of the "overly broad" prevailing wage standard, which "allows companies to slot jobs into categories that could include far less advanced roles, which have lower wage standards."

America First reforms

Amid an uncertain tech job market and ongoing criticisms of the PERM process, advocates like Jobs.Now are pushing for reforms to address the root problems and restore priority to American workers.

Jobs.Now is calling for changes to H-1B and PERM regulations, as well as the cancellation of the OPT visa program, to open more job opportunities to American workers, including entry-level recent college graduates.

‘We think the regulations must be changed so that labor market tests give American citizens the right they deserve to be considered first for jobs in America, rather than the formality they are currently treated as.’

Companies should also be required to prove that there are no qualified American candidates available for a position before issuing an H-1B visa, Jobs.Now stated.

The tech workers behind the job board website are advocating for companies to be required to post all labor market tests on their website’s career page, accept digital applications, and post on high-traffic job boards like LinkedIn or Indeed, rather than newspaper classifieds.

Photo by Justin Sullivan/Getty Images

“In short, we think the regulations must be changed so that labor market tests give American citizens the right they deserve to be considered first for jobs in America, rather than the formality they are currently treated as,” Jobs.Now told Blaze News.

Fabela agrees that the H-1B program is flawed and in need of reform to prevent abuse. However, he noted that he is “unapologetically pro-H-1B," expressing concern that China would win the tech race “without firing a shot” if the U.S. closes the door on foreign talent.

The U.S. Equal Employment Opportunity Commission has vowed to clamp down on employment bias by increasing investigations, compliance checks, and litigation.

“The EEOC is putting employers and other covered entities on notice: If you are part of the pipeline contributing to our immigration crisis or abusing our legal immigration system via illegal preferences against American workers, you must stop,” EEOC Acting Chair Andrea Lucas stated in March.

“The EEOC is here to protect all workers from unlawful national origin discrimination, including American workers,” Lucas remarked.

The DOL did not respond to a request for comment.

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