from Hacker News

Apple discriminated against US citizens in hiring, DOJ says

by nataz on 11/10/23, 9:45 PM with 261 comments

  • by tomohelix on 11/10/23, 10:26 PM

    Reading into the press release, there is a distinction that probably escapes most native citizens here: they are talking about EB2 visa, not H1B. PERM certification is not the same labor certification done in H1B.

    PERM is a much more rigorous and demanding process and it costs a lot more money than anything related to H1B. The reason is because it leads to a green card, not just a work permit. Often, it requires an advance degree and higher qualification than H1B too, PhDs or experienced masters. The money is paid upfront and USCIS then look into it and approves PERM on a case by case basis often taking a year or more. Then when the PERM passes, the applicant can finally get on the green card backlog and wait a few more years, or a decade if you were born in the wrong place...

    This is to say the quality of applicants here is very high and Apple actually felt it was worth it to invest tens of thousands of dollars on each of them just for a green card gamble, which the employee can get then quit Apple immediately after and nothing can be done to them because they are now a permanent resident. No such thing as wage depression or abuse at this point because they are for all legal purposes, an equal to any American once they have EB2.

  • by vsskanth on 11/11/23, 12:07 AM

    I think this relates to something called batch PERM where they can apply for employment based (EB) green cards for batches of their existing visa employees in similar roles instead of doing recruitment for every single position.

    Meta got in trouble with the DOJ for the same thing. They advertised for positions in newspapers and only accepted paper applications for PERM positions, unlike their other jobs which are advertised online. This is mainly because you don't want anyone actually applying for the PERM roles, since you need to prove no minimally (not most) qualified US citizen or PR could be found.

    I think long term this is going to make getting PERM approved more difficult. It already takes 2-3 years now (without any audits) to get an I-140 (green card) application approved, not to mention getting the card can take decades in some cases.

    People on H1B work visa can't stay on it for more than 6 years unless they actually get through PERM and get I-140, so I'm expecting this change will have a chilling effect on employers sponsoring work visas and applying for PERM unless it's a very specialized role. Why would you sponsor someone if you know they can't work in the country long term ? Hard times ahead for people on visa.

  • by ChrisMarshallNY on 11/10/23, 10:20 PM

    I suspect that this is more a "certain managers wanted certain types of employees," as opposed to a systemic, companywide decree from Up High (like IBM's ageism).

    Apple just makes too damn much money to worry overmuch about salaries. If anything, a lot of managers like H1Bs, because they can drive them like slaves. I've seen exactly that, in front of my own eyes. It's pretty disturbing, if you are a manager like me.

  • by clumsysmurf on 11/10/23, 10:20 PM

    I worked at a company owned by some large banks. When the immigration lawyer came for a meetings roughly once per year, the place got super quiet. Everyone I worked with did basic stuff ... docker, Spring Boot, and I didn't understand how such basic positions needed visas in such a large metro like Phoenix. Yet, the pay was comparable ... there must be some angle I don't understand.

  • by justrealist on 11/10/23, 10:08 PM

    This is the thing where when you want to sponsor a specific employee for an H1B you have to post notices pretending to look for American citizens instead.

    Every FAANG is guilty of this. Every startup is guilty of this. There is no law less adhered to in the US.

    Everyone posts the notice on the office fridge or the receptionist stand or runs some newspaper ad to cover the nominal letter of the law. It's completely pointless.

    Just to add some context here.

  • by jmspring on 11/10/23, 10:08 PM

    I'm sure many US-based tech companies can be blamed for preferring the cheaper option ... I would think our visa process plays no small part here, further the lax compliance on what "special skillset" means in the case of H-* visas.

    The system allows it, why not take advantage of such.

  • by VirusNewbie on 11/10/23, 11:37 PM

    I have worked at other FAANGs where I see certain immigrant managers only seem to hire other immigrants from the same country...

  • by booleandilemma on 11/10/23, 10:36 PM

    My company's goal seems to be to hire every Indian south of Hyderabad. I do wonder when Americans are going to wake up and realize these high-paying jobs could be going to them.

  • by jl2718 on 11/11/23, 12:30 AM

    If all their job postings are not actually hiring, then they won’t get any applicants for the jobs that actually are, and then they can use that as evidence that they can’t find in-country candidates.

    So basically the only way to find any real job posting is to spam-apply to everything. Is there a service for that?

  • by lessbergstein on 11/10/23, 11:21 PM

    All the FAANG and similar corps have been doing this for decades at this point. Our government works for them. This judgement is a joke designed to save face.

  • by robotnikman on 11/10/23, 10:07 PM

    It says Apple agreed to pay the fine, but does this mean they will actually stop discriminating in their hiring?

  • by SpicyLemonZest on 11/10/23, 10:18 PM

    I'm pretty sympathetic to Apple here. The article makes it sound like they did this for no reason, but the point of these hidden PERM positions is to be escape valves for the bonkers H1B system, which otherwise requires that skilled, valuable employees get booted out of the country after 3-6 years. If the government doesn't want Apple jumping through loopholes they should pass a more reasonable skilled visa program.

  • by trident5000 on 11/11/23, 1:42 AM

    Companies complain the H1B program is needed because the talent doesnt exist. Thats just a lie to get cheaper labor.

  • by nojvek on 11/11/23, 2:27 PM

    FB had such a case in 2018.

    Even though FB/Meta is hiring again and you apply with a referral link, even as US citizen you still get no responses.

    No email, no phone call, totally ghosted.

    Almost seems like their job board is to appease DOJ rules but they hire on other criteria.

  • by phendrenad2 on 11/12/23, 7:15 AM

    > required all PERM position applicants to mail paper applications, even though the company permitted electronic applications for other positions. In some instances, Apple did not consider certain applications for PERM positions from Apple employees if those applications were submitted electronically

    > the company acknowledged in a statement that it had "unintentionally not been following the DOJ standard"

    I'd love to know what sequence of events led to this very archaic but unintentional violation! Should be a fun read!

  • by kepler1 on 11/11/23, 5:22 AM

    Regardless of the issue here, I just want to say that I'm glad we put up such high standards for allowing people with skills into this country.

    Because if we didn't, we'd have random people just crossing the border at will and living in the country with no repercussions whatsoever.

    Oh wait, huh. So, why do we make skilled people prove with mountains of paperwork and credentials that they should be allowed to enter the country?

  • by mbfg on 11/11/23, 1:33 AM

    25 million is chump change to Apple. To whatever extent the practice was deviously purposeful, this ruling only emboldens that urge.

  • by Georgelemental on 11/10/23, 10:08 PM

  • by jmyeet on 11/11/23, 3:19 AM

    I don't know if Apple does this but various bodyshop companies (eg Infosys) absolutely do. Other comments have argued PERM applicants are high-quality. That's often not the case. Let me explain the process for non-Americans on how you go through employment-based immigration to the US.

    You get a work visa. There are typically 4 options. There are 4 major options (there are others that are less common):

    1. H1B: requires a bachelor's degree or equivalent experience. There is an annual quota. There are now more applicants than visas so there is a lottery. If you don't get picked, try again next year. H1B is issued for 3 years and can be renewed for another 3. Beyond that, you have to leave or file a PERM application and you can stay while it's pending. H1B is transferable with minimal effort to a new employer;

    2. TN visa: available to Canadians. It's a 3 year nonimmigrant intent visa that requires. It can technically be renewed repeatedly but CBP is free to decide you're really living here and just deny your visa. The conservative approach is that TN holders wishing to immigrate will transfer to an H1B when possible. H1Bs can have weird conditions like when and how often you can re-enter the country. Some countries don't allow re-entry beyond the first year so leaving means going to a consulate and applying for a new visa;

    3. E3 visa: much like a TN but available to Australians. It's 2 years, nonimmigrant intent and not transferable. There's a quota but it's never been hit. Many wishing to get a green card will also try to get an H1B at some point;

    4. L1 visa: large companies use this for transfers. Work in Canada or London for a year and then get transferred.

    This brings us to PERM. It's basically a 2 step process:

    1. File a PERM. This involves many steps like getting a labor certification. This takes 6-24+ months. USCIS may randomly audit you, which can add 1-2 years. They may have a reason too but but they also randomly audit a large number of applications, allegedly to stop the system being gamed. The reality is that it's arbitrary and capricious. Things may just randomly take 2 years longer for no reason at all. Once your number comes up (more on this below), you go to the next step;

    2. File an adjustment of status ("AoS"). There are 2 forms that can be filed concurrently (I-141 and I-485 IIRC). This should only take 6-12 months. It depends on your service center though. If there's something weird about your application it may take longer with multiple rounds of RFE ("Requests for Evidence") that each take months to be examined.

    PERMs have a total quota and a per-country quota (of 7% of the total). And by "country" I mean "country of birth". Your passport doesn't matter at all. If you're born to Norwegian parents in Mumbai, you'll be in the India queue and you don't want to be there. Expect to wait 10-30 years because there is a backlog in the millions.

    Occasionally there's some talk of Congress reforming this but nothing much has changed in a long time.

    So where's the abuse? It takes 2 forms:

    1. The Department of Labor is meant to ensure you're not underpaid (ie exploited). But they look at average pay for software engineers in a geographic area. For a Big Tech company, this could be substantially higher. But they don't have to pay you that higher amount technically because you're beholden to the company. If you leave you need to file a new PERM (but you keep your priority date). Still, this might add a year or two; and

    2. Oncd you have your green card you don't need work authorization anymore so you can freely take a new job. So if you're from India you're effectively an indentured servant for decades because of the backlog.

    So H1Bs have no per-country quota but green cards do. We issue way more H1Bs to Indian-born workers than we issue green cards to so the queue is only getting longer. Bear in mind tooo that if you're a worker with a spouse and two children you'll need 4 from the quota not 1.

    So these bodyshop companies that employ a lot of Indian nationals flood the H1B pipeline. It's why there's a lottery. The companies don't care who does and doesn't get a visa. These are relatively low paying jobs, which in practice have bad conditions. The threat of being fired keepes workers from demanding better pay and conditions let alone leaving.

    Was apple engaging in these practices? I have no idea (and certainly no direct knowledge). But that's what PERM abuse looks like.

    Honestly, work visas should just automatically convert to a green card after 6 years.

  • by TeeMassive on 11/11/23, 4:15 AM

    "Apple agreed to pay up to $25 million in back pay and civil penalties to settle the DOJ allegations."

    This is a slap on the wrist.

  • by m3kw9 on 11/11/23, 12:41 AM

    Apple got sued for hiring diversity lol

  • by Racing0461 on 11/11/23, 2:24 AM

    Should have gotton the corporate death penalty for this.

  • by superduty on 11/10/23, 9:53 PM

    Is this the same DOJ going after SpaceX for the opposite?

  • by NovemberWhiskey on 11/10/23, 10:48 PM

    The unstated truth here is that when you advertise in order to get PERM certification, you really don't actually want to get applications. The 99% scenario is you've already got an employee who is on a non-immigrant visa, that you're invested in, and that you want to get onto the green card trajectory.

  • by ren_engineer on 11/10/23, 10:20 PM

    >Apple agreed to pay up to $25 million in back pay

    I'm sure that will be devastating for a company with 162 Billion in cash and really make them think twice