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Comment by returningfory2 | Hacker News Reader

This is literally false? Ever since the H-1B has been in law the requirement is that the person has a degree and is working in a speciality occupation related to that degree. The INA imposes no conditions like “occupations for which there are no US workers”.

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I'm strictly referring to the intent of the H-1B program, not the actual letter of the law. The Department of Labor's website makes this intent explicitly clear:

> The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States. [0]

You are mostly correct that the actual Immigration Act has almost no legal teeth to enforce this. The only explicit provision in the law is that H-1B dependent companies (≥15% of the workforce is H-1B) must "take good faith steps to recruit U.S. workers for the job for which the H-1Bs are sought." [1] In practice, this almost never applies, but it is nonetheless token lip service towards the ostensible intent of the H-1B program as strictly a specialized visa program, which is the pretense under which it was passed in 1990.

[0] https://www.dol.gov/agencies/whd/immigration/h1b

[1] https://www.law.cornell.edu/cfr/text/20/655.739

To me this seems to be an upside down view of US immigration law (and US law in general). The INA is the supreme immigration law of the land. DOL regulations and documents are downstream and subordinate to the INA. The true “intent” of the H1B program is whatever is in the INA.

The employer has to prove that they have tried and failed to hire a US worker qualified and willing to do the job for the prevailing wage. The complication is that some people think the existence of the H1B affects the prevailing wage, and the system is therefore skewed.

> The employer has to prove that they have tried and failed to hire a US worker qualified and willing to do the job for the prevailing wage.

No they don’t. You’re probably thinking about the requirements for employment based green cards, which do require a labor market test. The H1B does not.

Yes they do, H1B employer has to advertise the H1B job

Companies list the H1B eligible position and salary internally and externally specifically for compliance

No, they don’t have to advertise the position. They have to disclose that they are hiring H1B workers. It’s a huge difference. In particular, there is no mechanism by which the disclosure can lead to a US worker applying for the job and blocking the H1B hire.

For H1B there’s simply no labor market test.

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