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Justice Dept files suit against Facebook for discriminating against U.S. workers

justice.gov

by 0xedb·5y ago·352 comments·view on hn ↗

352 comments

> Not only do Facebook’s alleged practices discriminate against U.S. workers, they have adverse consequences on temporary visa holders by creating an employment relationship that is not on equal terms. An employer that engages in the practices alleged in the lawsuit against Facebook can expect more temporary visa holders to apply for positions and increased retention post-hire. Such temporary visa holders often have limited job mobility and thus are likely to remain with their company until they can adjust status, which for some can be decades.

I guess it's good that the Justice Department is openly acknowledging that this is a problem. Maybe we'll see if actually get addressed at some point now.

That being said it feels like a slightly out-of-place comment when much of this allegation is about hiring for jobs as part of the PERM process. If Facebook is purposely going through the PERM process with these employees, it is actively working to remove those un-equal terms. After the PERM process, the employee is free to leave and not remain with the company until they can adjust status.

Yes, the PERM advertising rules are stupid and outdated, but I don't see any evidence here that Facebook didn't follow them.

If the Justice Department wants to go after true abuse of the H1-B program, there are significantly-more-legitimate targets (Tata, Infosys, etc).

I honestly can't believe that this has made me defend Facebook.

> The complaint also alleges that Facebook sought to channel jobs to temporary visa holders at the expense of U.S. workers by failing to advertise those vacancies on its careers website, requiring applicants to apply by physical mail only, and refusing to consider any U.S. workers who applied for those positions. In contrast, Facebook’s usual hiring process relies on recruitment methods designed to encourage applications by advertising positions on its careers website, accepting electronic applications, and not pre-selecting candidates to be hired based on a candidate’s immigration status, according to the lawsuit. > > In its investigation, the department determined that Facebook’s ineffective recruitment methods dissuaded U.S. workers from applying to its PERM positions. The department concluded that, during the relevant period, Facebook received zero or one U.S. worker applicants for 99.7 percent of its PERM positions, while comparable positions at Facebook that were advertised on its careers website during a similar time period typically attracted 100 or more applicants each. These U.S. workers were denied an opportunity to be considered for the jobs Facebook sought to channel to temporary visa holders, according to the lawsuit.

Facebook was not actively working to remove those un-equal terms. They set up a separate, physical-mail only pipeline for these candidates, and denied any US Citizens who applied using the obscure pipeline.

> That being said it feels like a slightly out-of-place comment when much of this allegation is about hiring for jobs as part of the PERM process. If Facebook is purposely going through the PERM process with these employees, it is actively working to remove those un-equal terms. After the PERM process, the employee is free to leave and not remain with the company until they can adjust status.

I think they meant the special PERM "benefit" for employees is used as a carrot to attract temporary workers who may or may not ever get it themselves. You can't leave because you'd lose your advantaged insider status.

> there are significantly-more-legitimate targets

Yeah, this is giving me the feel of a very tailored lawsuit - it is media-friendly, unlikely to be systemically disruptive, and I'd call it extremely likely that it is settled for a press release and no meaningful change.

> I honestly can't believe that this has made me defend Facebook.

I'm going to go take a shower, too.

Also, I wonder what C19 does to H1B visas over the long term. I expect my company to announce permanent WFH at some point, keeping a much smaller physical space for exec meets and whatever.

It may well be that the demand for physical presence H1Bs drops significantly in tech firms.

What are the rules on advertising jobs? In the past, I've seen positions notified internally on a pin up board in the lunchroom. Apparently there is some law that requires that. I wonder if that's the bare minimum or if jobs have to be notified online now. I know a lot of legal things have to be notified in newspapers for example. This is usually the print edition which have less subscribers these days.

But now that companies are fully remote, how are you supposed to be notified of pending H1B, jobs etc... ? It seems like an interesting question!

If the Justice Department wants to go after true abuse of the H-1B system, they should issue a press release saying that the unequal terms are fundamentally unjust for workers and therefore unavoidably appealing to employers and they refuse to prosecute mistreatment of non-H-1B workers until Congress acts to address this, because they see it as a waste of resources to dissuade companies from doing something so absurdly rational.

This whole area of law is nonsense. Facebook software engineering doesn’t have “positions”. You don’t apply for some specific role. They are hiring thousands of engineers every year, they hire for general software engineering skills, and you figure out what exactly you’re working on afterwards.

Meanwhile, US immigration law assumes that you are hiring one person at a time, and that each person is being hired for a separate “position”. You cannot say, we need 3000 people in this role this year, we have 1000, so we need 2000 more.

It ends up just being incoherent. You have to answer questions like “why are you unable to hire an American” and it’s like... well we are. We’re hiring many many Americans.

I think you just made the Justice Department's case for them. An H-1B is intended for individuals with specialized skillsets. The fact that Facebook engages in this form of mass, generic recruiting underscores the fact that they are not seeking out rare skillsets and don't really need to utilize this program to find people matching the required criteria.

Yeah, I want more details.

It claims that Facebook specifically did not advertise some roles on its careers website, which led to these specific roles having ~0 US applications. Whereas most other roles have hundreds of US applications.

What 'roles' were these? Is there some specific role they are not advertising?

Edit: The original complaint https://www.justice.gov/opa/press-release/file/1342786/downl... You are exactly right; there are no 'roles' and it stems from the completely different type of hiring exactly as you describe.

"Beginning no later than January 1, 2018, and continuing until at least September 18, 2019, Facebook’s standard operating procedure was to automatically initiate a PERM process when a temporary visa holder who was a Facebook employee in a “level 3” role1 or above asked Facebook for a permanent position, if the PERM process was needed to offer the PERM beneficiary such a position. 36. Facebook’s standard operating procedure was not to consider the temporary visa holder’s job performance or seniority or consult with the employee’s manager about the temporary visa holder’s job performance before initiating the PERM process on his or her behalf. 37. As noted above, to file a PERM application, Department of Labor rules first required Facebook to ensure that there were no minimally qualified and available U.S. workers for the position that Facebook wanted to offer to the PERM beneficiary. 38. From at least January 1, 2018 to at least September 18, 2019, when a Facebook employee who was a temporary visa holder expressed interest in receiving a permanent position through the PERM process, Facebook diverged from its normal recruiting protocols by not advertising the position on its external website, Facebook.com/careers, by not accepting online applications, and by requiring interested applicants to apply to the position by mail."

Essentially, it seems like when a temporary visa holder working at Facebook wanted to have a permanent position, Facebook would create a 'dummy' role for them, then advertise it where people would not apply, so that they could then hire the employee permanently. But I wouldn't call this discrimination at all; I would call this Facebook hiring as many talented people as they can, as fast as they can. The same 'role' is still available and on the careers website.

Facebook SWE does have positions. There is a generic SWE role they hire a lot of recent grads into, but there are many bespoke positions. In my case, I was hired at Google onto a specific team via a bespoke role ("Test Engineer, Site Reliability Engineering") that was distinct from the general Test Engineer role. I interviewed with the team that I would be working on.

I don't understand why hiring 3000 engineers for a generic "engineering" can be reduced to "Facebook doesn't have positions."

Facebook is looking to hire a human to fill a spot in the org chart. The fact that they are hiring other people for other spots in the org chart (and they might be able to swap people) does not change that they are positions.

>You have to answer questions like “why are you unable to hire an American” and it’s like... well we are. We’re hiring many many Americans.

Saying no to this question means you are not hiring a US resident for this position. You're hiring many US residents for other positions. That seems...accurate?

Are you thinking that, if a company hires X number of US residents, that should entitle them to hire Y non-US residents? I'm not trying to be obtuse - I want to understand what a non "incoherent" policy would look like for you.

They really don’t hire that many Americans

I mean that's sort of the point. The program is supposed to be for specialized positions that you just can't get an American worker to fill. If you've just hired 1,000 Americans into an identical position you've demonstrated that you're misusing the intent of the program.

Is it so hard to get american workers? Don't they pay enough? Or why do they need foreigners?

Are you a lawyer?

I am someone who went through (fully legal) immigration hell while building a company that in the end, employed 100s of US workers and had global competition (meaning, if we didn't do it in the US the jobs would probably go to some other country).

Here's my conclusion from this experience: if you are in a business that depends on Intellectual Property competes globally (i.e. not a nail salon hiring local workers), then in the area that gives you your competitve advantage YOU NEED TO HIRE THE BEST GLOBAL TALENT. Period.

If the immigration system doesn't allow that, then either you'll hire remote, or you'll be beaten by an international competitor with more liberal skilled immigration rules. Neither is a great outcome.

There are simple ways to ensure H1-B is used to hire this type of talent. The recent rules that prioritize H1-B applicants based on their salary are positive IMO and address a lot of the Tata/Infosys abuse (which is real). If you are truly going after the best global talent, that won't be cheap!

H1-B is super old school. The notion is that you only hire someone in H1-B if there's nobody that can do the job. However, the challenge today is not if you can do the job, but can you do it better than the global competitors? That concept is super foreign to immigration legislation (no pun intended :).

Short of a whole new immigration framework, increasing the number of H1-Bs and prioritizing based on salary would be a good short term fix - no lawsuits needed.

The point of law is to serve the nation

Is it in the nation's best interest for you to hire the best person? or to hire a tax payer?

It's not old school, it's self protection.

> prioritizing based on salary would be a good short term fix

You have to remember that H1-Bs are used for many occupations and industries outside of tech. Prioritizing by salary only effectively means that 99% of all H1-Bs would go to 3-4 large companies.

Yes, nurses, doctors, etc may not get paid as much as a FAANG engineer a couple of years out of college, but they are still often needed.

I think that if you want to prioritize by salary within industries that could potentially work, but then you're bordering on a "new immigration framework".

I don't understand this comment. The justice department alleges that Facebook went out of its way to hide jobs from Americans bc there is a power imbalance that favors the employer of an immigrant worker. This wasn't about hiring better talent, but about hiring talent that you can underpay while still retaining. As a side effect, qualified Americans were harmed.

These allegations may or may not be true but I fail to see how your framing addresses the complaint.

I agree that forcing higher pay for visa holders helps to align incentives.

Seems like an open secret that tech cos like H1-Bs because they can pay them less and they’ll work hard because the alternative is getting fired and being kicked out of the country.

It’s a really backwards system with messed up incentives that probably needs to be reformed.

Facebook pays software engineers on an H1-B with the same salary scale that they pay all software engineers. Some companies might work that way, but the top tier like Facebook and Google do not.

The whole system is rife with fraud and abuse.

I've worked at several large corporations were workers would drift around different business groups, picking up work and getting another short term contract in order to stay in the country and continue to be gainfully employed. There was a running joke between managers about recycling developers so they never had to sponsor any of them.

I also worked at two different startups where they hired a developer and then a few weeks into the gig, they figured out this wasn't the person they thought they had hired. The second time, I wondered to a co-worker about it and he said there's a huge problem with one person (the qualified candidate) doing the interview and then they send a totally unqualified person to the gig.

I also experienced large teams were an Indian developer would be getting close to his H1-B expiring and suddenly send a manager an email about a "sick family member" and having to return to India, never to show up again. One of co-workers said its pretty common and the H1-B devs are constantly interviewing and if they get a fresh contract, they'll just leave the current company and start at the new one - without any heads up to anybody, they just ghost.

The whole program is so unregulated and so many loopholes for both sides to take advantage of, it needs to be changed for sure.

Facebook seems like the last company that cares about paying less. They typically give out offers higher than other employers in SV.

Eric Weinstein makes the case that it's a wage tampering program for scientists and tech workers generally.

https://twitter.com/EricRWeinstein/status/107032731818526720...

https://www.ineteconomics.org/uploads/papers/Weinstein-GUI_N...

Don't forget it also drains the international talent pool.

There are great schools outside of the US; it would be foolish for companies not to hire from there. Keep in mind that if right now I wanted to hire: A smart graduate from EPFL, Polytechnique or ETH Zurich who interned at CERN and has contributed to the Linux kernel for a software engineering job at a unicorn startup

A grad from a second tier "technical college" in India with a visa refusal rate of ~90% for a job doing manual UI testing and QA for a body shop

my only path forward is H1. They'll both be listed as "computer related occupations" and apply for the same visa in the same quota. Does that makes any sense to anyone?

I will disagree with the pay less part. I know people who get > $500K as a software engineer on H1b. Getting worker on H1b requires 1-2 month legal process, lot of paperwork and extra money. I think it is more expensive for companies to hire foreign workers. Some startups straight out reject visa holders since they don't have resources to hire them.

I think what people are missing here is that this lawsuit is not about hiring foreign workers over US workers, it's about circumventing the PERM process. The PERM process is a bit outdated and requires you to advertise for the same position that a person is already hired for and has been working in, to prove that there isn't another person who can take up the job. It is a flawed process because even though the process is to prove that the person is filling gaps in the labor market, it doesn't fully capture that. Say you have 10000 infrastructure engineers in the market that are US citizens and there are 15000 job openings, if you advertise a job opening, you'll always have candidates who are basically switching jobs and therefore according to the PERM requirements, you can't hire foreign workers. But in reality you still need to fill 5000 jobs. So to compensate for that a lot of companies, follow the process which requires you put a job posting in print media and collect applications via mail, but don't go the extra mile to post online. Because they already have the candidate working in their company, and they need to prove that they are worthy of the job. FB isn't to blame here tbh, it's the immigration laws that were drafted decades ago. I bet FB walks free of this one.

Based on what I'm reading, and what I've experienced, I would say a lot of Bay Area companies "[create] a hiring system in which it [denies] qualified U.S. workers a fair opportunity to learn about and apply for jobs that [the company] instead sought to channel to temporary visa holders [the company] wanted to sponsor for green cards".

In some cases, these companies don't want to sponsor the employee for a green-card, but simply are satisfied with the work being done by the visa-holder, and want to continue to pay for that work. The companies don't want to have to look for qualified local talent every-time the visa renewal comes up.

> The companies don't want to have to look for qualified local talent every-time the visa renewal comes up.

I can't imagine any sane company would. Hiring people is an expensive process, not to mention the morale hit of essentially firing someone for things out of their control. If i was a company, i too would want to stand by an employee if they were doing a good job.

If they don't want to have to look for qualified local talent every-time the visa renewal comes up, and the employee is being a valuable and productive member of society, that seems like an ideal case for some kind of permanent residency program. Maybe it could involve some kind of colored card?

What an absolute mess this whole system is.

>Such temporary visa holders often have limited job mobility and thus are likely to remain with their company until they can adjust status, which for some can be decades.

They need to fix that and address the root issue rather than force tens of thousands of companies to fire ppl who were working for several years and have a lot of institutional knowlege.

Interesting, a Justice Department lawsuit that specifically targets me! (This hopefully won't happen again very soon.)

I work for Facebook in the US on an L-1 visa. I'm currently in the process of applying for permanent residence (green card) through the PERM process targeted here.

The Justice Dept seems upset that Facebook doesn't advertise my job on the careers website. The reason is very simple: FB doesn't want to hire someone else for this job. They're doing the PERM process because they want to keep me.

I know I'm not underpaid compared to my peers. I'm fairly high level and came to FB through an acquisition. I have deep knowledge and ownership of a very specific piece of the tech stack.

It seems bizarre for the Justice Dept to argue that FB should just throw away their investment in me and hire an American instead. How would that help the USA?

Immigrants considering software unions, look about this thread. You see what people are saying. You can see what they think about you. This is normal. This is how they feel about you.

The unions are weak now and full of bleeding hearts who probably do care. But when they cover a representative fraction of software engineers, this is what it will look like. You will stand at a union all-hands and you will look around you and it will look like this, having reverted to the mean.

If you subsume your individual self into the whole, you are then subject to where the whole goes. Read this thread. This is where the whole goes. Semper Vigilo.

H1B's should be reserved for subject matter experts, innovators, field experts - as opposed to every shmuck with a masters or bs degree in CS or engineering.

All those consulting firms like Tata Consulting Services are gaming the H1B process, middle manning the employees, and in result Facebook, Home Depot, and others hire them for 1/3 or 1/2 less.

I'm not surprised by this at all.

I used to work in the US at at a large international bank with headquarters overseas that preferred having employees from the same country as HQ. We would advertise a position, internally or just to alumni networks of unis there. Once we interviewed people and knew who we wanted to hire, there would be a delay because HR would have to advertise the position publicly for at least a week (or two, I forgot), and then we could proceed officially with the hire.

A lot of companies advertise through newspaper to comply with PERM so they can file a green card application. pretty much an open secret. DOJ is finally looking into this now.

The divide between US citizen W2 employees and everyone else will define our generation.

Important to note: the allegations, if true, probably only indirectly impacted you or me. In other words, we all failed our Facebook interviews the good ol fashion way - through incompetence - not unfairness.

It's nice that this is getting some attention, but I hope it results in good policy!