Re: Retrospective Review and Regulatory Flexibility, published at 80 Fed. Reg. 5715-5716 (February 3, 2015); Docket Number DOL_FRDOC_0001-0392
Intel Corporation (Intel) appreciates the opportunity to submit these comments about PERM modernization. Intel participates in the Council for Global Immigration (CFGI) and also supports the comments it is providing about PERM and other topics.
Intel is a cornerstone of America’s world leadership in high technology. Among many other things, Intel builds the tiny “engines” that power almost every type of intelligent electronic device on the planet. It was integral to the development of Silicon Valley and has gone on to create countless high-tech jobs across the country for Americans, but the company’s dynamism and growth requires also hiring highly educated and talented foreign nationals, a majority of whom it hires upon graduation in STEM fields from American graduate schools. Intel sponsors nearly all foreign nationals it hires for permanent residence.
PERM’S Fundamental Dysfunctionality
The elephant in the room is that PERM is incompatible with regular hiring practices and modern business immigration.
1. PERM Recruitment is at the Wrong Time. The recruitment occurs long after the recruitment that resulted in hiring the incumbent foreign national. So, there is wasteful re-recruitment for PERM and suspicion by the Department of Labor that employers do not recruit in good faith because they want to protect the employment of incumbent foreign nationals.
2. PERM Recruitment’s Artificial Methods and Standards Do Not Allow Using Available Data from the Companies’ Longstanding Regular Recruitment in the Competitive Labor Market. The market forces companies to use the most effective recruitment methods and the results of that recruitment are the most accurate indicator of U.S. worker shortage. Instead, the re-recruitment must occur under artificial conditions ranging from Sunday Newspaper advertisements, to narrow interview scope (no “soft” factors) to unrealistic lowered definitions of minimum requirements. Much of the artificiality results from DOL’s skepticism that the recruitment is in good faith, which in great part is caused by the recruitment’s being re-recruitment for a position that already has a foreign national incumbent.
3. There is Wasteful Repetitive Certification of the Same Positions. Intel and many similar employers have ongoing PERM programs that result in up to hundreds of repetitive certifications approximately every six months. The waste is enormous to keep demonstrating the same recruitment results.
4. Denials for Employers with Mature PERM Programs are Largely Arbitrary. In the context of years of high volume certification for the same positions, the occasional denial is arbitrary and takes on the air of a “gotcha game” where denials are for mistakes or technical reasons and have nothing to do with whether there really is for some reason no shortage of U.S. workers for that particular position.
DOL and employers alike experience the PERM process as an artificial bureaucratic construct fraught with suspicion and frustration. A picture that paints a thousand words is the Sunday classifieds sections across the country where the vast majority of advertisements for STEM positions are carefully worded re-recruitment. Year after year this continues, with only the most minimal impact on the public policy of protecting U.S. workers where there is no shortage. These are the dysfunctionalities, and they stem in large part from the elephant in the room that PERM recruitment is re-recruitment and with artificial standards and methods.
Intel Data About Waste and Repetitiveness
Intel never hires foreign nationals out of college with Bachelors Degrees. College hiring is nearly all from U.S. graduate schools where often a majority of the graduates are foreign nationals. The shortage of qualified U.S. workers in the positions for which Intel seeks Labor Certification is well known to observers, is confirmed by the results of recruitment of talent under competitive market conditions, and has been demonstrated ad nauseum in PERM certifications.
Intel typically has many hundreds of PERM applications certified in batches of filings once or twice a year. Over 90 percent of the certifications are in just 16 job titles, which shows the repetitiveness. Here are four examples showing the number certified and when the applications were filed.
Job Title Q3 2012 Q1 2013 Q3 2013 Q1 2014
Component Design Engineer 118 185 115 68
Graphics Hardware Engineer 45 77 38 11
Process Engineer 138 106 103 101
Software Engineer 114 157 114 85
The cost to Intel in legal fees alone is well into seven figures every year. An additional less recognized cost is that the lengthy time it takes to achieve Labor Certification delays permanent residence and increases the number of costly H-1B extensions. Beyond that, the process is frustrating and confusing to foreign nationals, recruiters and managers and requires constant explanation and training.
There are several categories of solutions.
1. Increased Use of Schedule A.
DOL can expand the list of occupations on Schedule A that are designated as skill shortage positions. This should be done for occupations with high volume of certifications. Schedule A could also be for specific skills sets. The most straightforward would be for positions filled by positions requiring graduate degrees in STEM. Those positions are repeatedly certified and have been recognized in public policy discourse as shortage positions for many years.
2. A Trusted Employer or Related Concept that Certifies an Employers Recruitment Program for a Period.
DOL could allow employers to apply for periodic certification of their recruitment programs for perhaps two years. Certification would require presenting data, process descriptions and attestations showing that the company has good faith competitive recruitment practices that vigorously search for qualified U.S. applicants. The certification could be limited to a subset of recruitment, such as for positions requiring a certain level of degree and experience.
3. Acceptance of Data from the Recruitment that Resulted in the Hiring of the Foreign National.
Short of the periodic certification of recruitment programs, DOL could at least allow companies to present data, processes and attestations about the recruitment that led to the hiring of the foreign national, rather than require the re-recruitment that is so pernicious.
These proposals have in common a recognition that a one size fits all PERM program is inefficient and poorly designed to achieve the public policy goals of Labor Certification. More distinctions need to be made, whether among sectors of the labor market (Schedule A) or companies (Trusted Employer or similar concept). Precedent exists with “special handling” for college and university teachers.
Intel appreciates DOL’s interest in modernizing its programs and the opportunity to comment on a program that especially needs overhaul, PERM. PERM is predicated on re-recruitment, with artificial methods and standards, repeated ad nauseum, and where denials (especially for graduate-level STEM positions) are nearly always for technical reasons and not true distinctions in U.S. worker availability.