United States of America Vs. Silicon Valley | Opinion

Riots, rallies and a contested presidential election last year made it easy to miss the Justice Department's lawsuit against Facebook in December. Silicon Valley's crown social media network, Justice alleges, systematically discriminates against hiring qualified Americans in favor of foreign visa-holding workers.

Investigators found Facebook creates permanent positions open only to H-1B visa holders while employing deceptive tactics to deliberately avoid hiring Americans. These practices are an open secret in the industry, and the lawsuit sheds light on the systemic nature of the problem.

Here's how this scheme works. Employers are not required to prove they first sought qualified Americans for jobs they petition H-1B visa workers to fill, but the employment-based green card sponsorship process does. Because the H-1B is a "dual-intent" visa, an individual can simultaneously hold a temporary work visa while also seeking permanent residency through an employment-based green card sponsorship by the employer. There is often nothing so permanent as a "guest worker" program, and Facebook entices temporary visa holders to stay for good.

The lawsuit alleges that when a temporary visa worker requests a permanent position to initiate the process of obtaining a green card, Facebook creates a sham job opening, the true purpose of which is to disqualify qualified Americans.

In a low-tech twist, the tech giant lists these openings in print publications instead of online and applicants submit their applications by snail mail. Why so old-school?

Because generally, the Department of Labor (DOL) must certify to the U.S. Citizenship and Immigration Services that there is a shortage of qualified Americans before a company hires a visa worker through the permanent labor certification program (PERM). It must also be shown that a foreign worker's employment will not adversely affect the wages and working conditions of similarly employed Americans.

The "job opening" created by Facebook is merely intended to comply with federal regulations—on paper, it looks like Facebook just couldn't find any qualified and available American applicants, so the permanent position went to an H-1B visa holder. Of course, according to Justice's lawsuit, that's not what really happens.

"Not surprisingly," the lawsuit alleges, "Facebook often gets zero applications for these advertised positions. And even when U.S. workers do apply, Facebook will not consider them for the advertised positions." Instead, the company "fills these positions exclusively with temporary visa holders." Based on the Justice Department's two-year investigation, Facebook snubbed qualified Americans for over 2,600 jobs, ranging from computer science to art director positions.

The lawsuit also refers to the "adverse consequences on temporary visa holders by creating an employment relationship that is not on equal terms." The H-1B is employer-specific, allowing an individual to work only for the employer that recruited the visa holder. Due to their limited job mobility, visa workers are "more likely to remain with their company until they can adjust status, which for some can be decades."

Put simply, employers can intimidate and exploit H-1B visa holders more easily than American workers because visa holders cannot simply quit their jobs. Visa-holding workers are willing to put up with abuse because of the possibility of a green card. But most importantly, the investigation reveals that DOL has no way of preventing this abuse by companies like Facebook because everything transpires within established legal and bureaucratic frameworks.

On the one hand, Congress requires DOL to approve all H-1B labor condition applications within seven days, so long as the paperwork is filled out correctly. The DOL can only check for obvious errors and inaccuracies and post-approval review is prohibited—so H-1Bs get rubber-stamped. On the other hand, the PERM process, which is supposed to be a proper testing of the labor market wherein companies identify a worker and advertise a position, is also being gamed, as the Justice Department found.

Thus, the entire domestic wage protection system with the H-1B program is a meaningless paper-shuffling exercise that provides window-dressing for American workers' legalized displacement.

As disturbing as this is, the lawsuit is merely a confirmation of what labor and immigration activists—on both the Left and the Right—have known for years.

Facebook corporate headquarters in Menlo Park, California
Facebook corporate headquarters in Menlo Park, California JOSH EDELSON/AFP via Getty Images

"Our goal is clearly not to find a qualified and interested U.S. worker," said Lawrence Lebowitz, an attorney with Cohen & Grigsby, at a business conference in 2007. "And you know, in a sense that may sound funny, but it's what we are trying to do here. We are complying with the law, fully, but our objective is to get this person a green card and to get through the labor certification process."

Lebowitz spoke to employers then about how to avoid hiring American workers while complying with federal rules requiring positions to be advertised in the United States before seeking foreign worker visas. He reiterated that the goal is to comply with the law while doing everything possible "not to find qualified and interested [American] worker applicants." And were a "very qualified" candidate to be found, Lebowitz's colleague explained, managers should find any legal basis to disqualify him or her for the position. "In most cases, that doesn't seem to be a problem."

The "no problem" attitude about systematic discrimination persists today.

Speaking to Business Insider, Kim Clarke, an immigration attorney at Varnum LLP, complained that Justice's lawsuit is "unfair" toward Facebook. She said that the company had, as Lebowitz put it, fully complied with the law in discriminating against hiring Americans. Technically, Clarke is right. Facebook, like every other major employer utilizing the H-1B program, can discriminate against Americans while still abiding by the Immigration Act of 1990.

Clarke and Facebook are thus effectively both saying that Facebook cheated fair and square and shouldn't be punished for that. The Justice Department disagrees and considers this to be a violation of Americans' civil rights.

The perpetuation of the immigration status quo is morally unjustifiable, and virtually every argument for maintaining it melts away in light of the relevant facts. For example, there is no critical labor shortage justifying the mass import of visa workers demanded by the tech industry and its allies.

An analysis by Hal Salzman, a professor at Rutgers University, found the United States had between 95,500 and 143,000 IT job openings in 2018 that generally went to candidates with a bachelor's degree or higher in computer science or engineering. The data also show that permanent residents earned about 100,000 degrees in computer science or related engineering fields. Reporting on these findings, Bloomberg editor Rachel Rosenthal added that "unlike in law or medicine, in technology, you don't need a computer science degree to work; in fact, two-thirds of new entrants in IT occupations major in other disciplines." She also noted that there are nearly two million college graduates each year—in other words, Americans can fill most openings. Moreover, those jobs not filled create a tight labor market, which means better wages for workers whose labor is in demand.

Apart from the labor shortage myth, another common justification for mass visas is that visa workers are simply more skilled than their American counterparts. But an analysis of data from the Program for International Assessment of Adult Competencies, as highlighted by the Center for Immigration Studies (CIS), suggests otherwise.

According to CIS, foreign-educated immigrants with a college or advanced degree perform poorly in both literacy and computer operations, scoring at the same level as Americans with only a high school diploma. One in six foreign degree holders scores "below basic" in numeracy. These skill disparities persist even after foreign degree holders have had at least five years in the United States to learn English. Rosenthal also cites research published in the Proceedings of the National Academy of Sciences that evince a similar trend.

Researchers found that American college seniors majoring in computer science "substantially outperform" their counterparts in China, India and Russia. America, for now, still produces bright minds in ample quantities and has no real need for "highly skilled" visa workers who are often anything but. Nevertheless, American genius counts for nothing when we disadvantage our own to feed a machine that demands cheap labor above all else.

In 2017, economists from the University of Michigan and the University of California, San Diego published a study on the impact of the H-1B program on jobs and wages over an eight-year period ending in 2001. They found that in the absence of immigration, wages for American computer scientists would have been 2.6 percent to 5.1 percent higher. The biggest winners, during that period, of course, were tech companies that raked in "substantially higher profits due to immigration." Most recently, the Economic Policy Institute reported in 2020 that 60 percent of H-1B positions certified by DOL are assigned wage levels well below the local median wage for the underlying occupations. Again, the real winners are the employers of underpaid foreign workers.

Now more than ever, this system poses a direct threat to the livelihoods of millions of Americans. Young college graduates are waking up to one of the worst job markets in recent history after already having borne the brunt of the COVID-19 economy. Employers have little reason to invest in training them—or even hiring them, in the first instance—when there is a steady flow of cheaper guest workers available.

The immigration status quo systematically discriminates against American citizens while exploiting foreign workers, resulting in an upward wealth transfer. Calling it "legal immigration" does not make right a system that is morally and ethically wrong. And it is important to bear this in mind as both parties continue to push the line that legal immigration is an unqualified good.

Pedro L. Gonzalez is assistant editor of American Greatness and a contributor at Chronicles: A Magazine of American Culture.

The views expressed in this article are the writer's own.