The *real* reason techies can’t find jobs: An Analysis of Strategic Job Concealment in the U.S. PERM Labor Certification Program

Acknowledgement: If you’ve read other posts on my site, you probably know me as someone who leans into sarcasm and humor. That tone is intentional, but today I want to set it aside. This post comes from a very different place. The hours I’ve poured into searching, reading, and chasing endless trails of information have left me with a deeper sense of responsibility. What I’ve uncovered isn’t just frustrating—it’s unacceptable. My only hope in sharing this is that it reaches the right people, those who can help bring about real change and make the job market fairer and stronger for all Americans.

Executive Summary

This report provides a comprehensive analysis of the systemic practice by some U.S. corporations of strategically concealing job openings to facilitate the Program Electronic Review Management (PERM) labor certification process, a critical step for obtaining employment-based permanent residency for foreign national employees. The central finding is that a significant pattern of deliberate job concealment exists, driven by a confluence of regulatory loopholes and powerful corporate incentives to retain pre-selected foreign workers. This practice, while often technically compliant with outdated Department of Labor (DOL) regulations, has been found to be in direct violation of the anti-discrimination provisions of the Immigration and Nationality Act (INA).
The investigation reveals that the PERM system’s reliance on an employer “attestation” model, combined with antiquated recruitment requirements, has created an environment ripe for manipulation. Corporations have developed a playbook of tactics—including requiring mail-in applications, advertising in obscure channels, and bypassing standard corporate career portals—designed to deter U.S. worker applications while creating a facade of a good-faith labor market test.
Landmark enforcement actions by the Department of Justice (DOJ) against Meta Platforms, Inc. (formerly Facebook) and Apple Inc. serve as pivotal case studies, providing incontrovertible proof of these practices. The substantial financial penalties, totaling nearly $40 million across both settlements, and the mandated, sweeping reforms to their recruitment processes signal a paradigm shift in federal enforcement. The DOJ is now successfully prosecuting this behavior as a form of citizenship-status discrimination, raising the legal and financial risks for all companies employing similar strategies.
Concurrently, the rise of public watchdog groups, most notably Jobs.now, has disrupted the information asymmetry upon which these concealment strategies depend. By aggregating and publicizing PERM-related job postings, these groups are exposing the hidden labor market to U.S. workers, prompting aggressive, and ultimately self-defeating, corporate pushback.

While the strategy of hiding jobs is now failing under the combined pressure of federal enforcement and public scrutiny, the underlying systemic vulnerabilities remain. This report concludes that meaningful policy reform is necessary to align the PERM process with its original statutory intent. Recommendations include modernizing recruitment regulations, enhancing DOL oversight, and potentially restructuring the timeline of the labor market test to eliminate the inherent conflict of interest that currently pervades the system. Such reforms are essential to protect U.S. workers and restore the integrity of the nation’s high-skilled immigration framework.

I. The PERM Labor Certification Process: A Regulatory Framework Under Strain

The phenomenon of deliberately concealed job openings is not a random corporate anomaly but a direct consequence of the structural design and inherent vulnerabilities of the U.S. permanent labor certification system. To understand why and how companies obscure these roles, it is essential to first deconstruct the legal architecture of the Program Electronic Review Management (PERM) process, its statutory purpose, and the critical weaknesses that have been systematically exploited.

A. The Statutory Mandate: Protecting the U.S. Labor Market

The PERM process, administered by the Department of Labor (DOL), is the foundational first step for most employment-based paths to lawful permanent residency, commonly known as a “green card”.1 Its statutory purpose is unambiguous: to protect the domestic labor market. The core principle, embedded in the Immigration and Nationality Act (INA), is to ensure that the hiring of a foreign worker on a permanent basis does not adversely affect the wages or working conditions of similarly employed U.S. workers.2
To fulfill this mandate, an employer sponsoring a foreign worker must first “test the labor market.” This involves conducting a prescribed recruitment process to prove to the DOL that there are no “able, willing, qualified, and available” U.S. workers to fill the position.4 Only after the Secretary of Labor certifies this lack of suitable domestic candidates can the employer proceed with the immigration petition on behalf of the foreign national.2 The entire framework is predicated on the idea that foreign workers are hired to fill genuine gaps in the domestic labor force, not to displace it.

B. The “Labor Market Test”: Prescribed Recruitment vs. Practical Reality

The regulations at 20 C.F.R. § 656.17 outline the specific, mandatory recruitment steps an employer must undertake to satisfy the labor market test. This process must be conducted within the 30 to 180 days preceding the filing of the PERM application.6 The requirements are highly prescriptive and include:

1. State Workforce Agency (SWA) Posting: The job order must be placed with the relevant SWA for a minimum of 30 calendar days.1
2. Newspaper Advertisements: The employer must place an advertisement on two different Sundays in a newspaper of general circulation in the area of intended employment. This requirement is a notable anachronism in an era where professional recruitment has migrated almost entirely online.1
3. Internal Posting Notice: A notice of the job opening must be posted at the physical worksite to inform current employees of the opportunity.8
4. Additional Recruitment Steps: For professional occupations, which constitute the vast majority of PERM applications, the employer must select and conduct three additional recruitment activities from a menu of ten options. These options include participating in job fairs, advertising on the employer’s website, using a job search website other than the employer’s, or placing ads on radio or television stations.1

While these steps appear comprehensive on paper, their practical application reveals a significant disconnect from modern, effective recruitment strategies. A company seeking to genuinely attract the best talent for a high-skilled role, such as a software engineer, would primarily leverage its corporate career portal, major online job boards like LinkedIn, and professional networks—channels that are not all strictly mandated by the PERM regulations. This discrepancy between regulated procedure and real-world practice creates the first major vulnerability in the system, allowing companies to follow the letter of the law while entirely subverting its intent.

C. Systemic Vulnerabilities: The Attestation Model and Limited Oversight

The most critical structural flaw of the PERM program is its design as an “attestation-based” system. When an employer files a PERM application (Form ETA-9089), it attests, under penalty of perjury, that it has completed all required recruitment steps and has been unable to find a qualified U.S. worker. However, the employer is not required to submit the supporting documentation—such as copies of advertisements, resumes received, or interview notes—at the time of filing.9
This model creates a system that is, in the words of the DOL’s own Office of the Inspector General (OIG), “highly susceptible to fraud”.9 The OIG has found that the PERM program “relentlessly has employers not complying with the qualifying criteria”.9 The lack of upfront documentary evidence means that the initial review by a DOL analyst is often a check for procedural completeness rather than a substantive evaluation of the recruitment’s good faith.
The weakness of this model is starkly illustrated by the OIG’s statistical analysis of audit outcomes. When the DOL does select an application for an audit, it is essentially a request for the supporting documentation that was not required upfront. The results of this increased scrutiny are dramatic: the OIG found that the denial rate for PERM applications subjected to an audit was 21%, compared to a denial rate of just 3% for applications that were reviewed without the submission of supporting documentation.9 This sevenfold increase in denials upon documentary review provides powerful evidence that a significant number of employers are attesting to compliance that they cannot subsequently prove.

This regulatory design establishes the core conflict of interest that drives the entire phenomenon of job concealment. A company that has already employed a foreign national for several years on a temporary visa, such as an H-1B, has a strong business interest in retaining that proven, integrated employee. The PERM process, however, forces that company to conduct a recruitment campaign designed to find a U.S. worker to replace them. Faced with this conflict, and operating within a system of limited initial oversight, the path of least resistance for the employer is to design a recruitment process that is procedurally compliant on its face but practically engineered to fail. The system’s architecture does not merely allow for this behavior; it actively incentivizes it.

II. Corporate Strategies for Obscuring PERM-Related Job Openings

The incentive to conduct a perfunctory labor market test has given rise to a coherent and deliberate playbook of tactics designed to obscure PERM-related job openings from qualified U.S. workers. These strategies are not signs of incompetence or laziness in recruitment; rather, they represent a systematic inversion of the principles of effective talent acquisition. By deviating sharply from their own standard, highly effective hiring practices for this specific category of jobs, companies reveal the intentional nature of the concealment.

A. The Playbook: A Systematic Inversion of Effective Recruitment

Evidence from Department of Justice investigations, media reports, and online forums for tech workers reveals a consistent set of methods used to create a facade of compliance while actively deterring applications.7 These tactics include:

• Requiring Mail-In Applications: In an era of one-click online applications, forcing candidates to submit a physical resume via postal mail is a significant deterrent. The DOJ described this practice as “absurd” in its actions against both Meta and Apple, noting that it “nearly always resulted in zero or very few mailed applications”.2 This archaic requirement creates a substantial barrier to entry, filtering out all but the most determined or unsuspecting applicants.
• Obscure Advertising Channels: While technically compliant with DOL rules, placing advertisements for senior software engineering roles in the print classifieds of a local newspaper is a tactic designed for invisibility. Companies have been documented using these print ads, as well as placing notices on esoteric websites or even on the radio, channels that are highly unlikely to be monitored by qualified professionals in major technology hubs.7
• Bypassing Standard Corporate Channels: Perhaps the most telling tactic is the failure to post PERM positions on the company’s own public-facing career website. For major corporations, this portal is the primary, authoritative source for all legitimate job openings. The deliberate omission of PERM roles from this central channel, as documented in the Apple case, is a clear signal that these are not standard opportunities.4 In some cases, companies post these jobs to separate, unlinked job boards to further obscure them from view.7
• Using Non-Standard Contact Points: Legitimate job postings typically direct applicants to a standardized applicant tracking system or a corporate recruiting email address. PERM-related ads, however, often direct applicants to unusual points of contact that signal the role’s true purpose. For example, online learning platform Udemy instructed applicants to send resumes to “Immigration@Udemy.com,” while OpenAI directed them to an individual on the “global mobility team”.11 These designations effectively warn savvy applicants that the posting is part of an immigration process, not a genuine search for a new hire.
• Crafting Hyper-Specific or Unrealistic Job Requirements: Another common strategy is to tailor the job description to perfectly match the unique combination of skills and experience of the incumbent foreign national employee. This can include listing requirements for niche, proprietary software or an unusual combination of foreign languages and technical skills, effectively ensuring that only the pre-selected candidate is “qualified”.7 This is often paired with unusually low salary ranges to further discourage interest.7

The systematic nature of these deviations from normal, effective recruitment is best illustrated through a direct comparison, as detailed in Table 2.1.

Recruitment Component	Standard Corporate Practice (for non-PERM roles)	Documented PERM-Specific Practice
Application Method	Online application via integrated Applicant Tracking System (ATS), often with one-click apply features.	Requirement for physical, mail-in applications.
Advertising Channels	Company’s main career website, major job boards (e.g., LinkedIn, Indeed), professional networks, targeted digital ads.	Local/rural print newspapers, obscure websites, radio ads; deliberate omission from main company career site.
Point of Contact	Centralized recruiting department email or direct application into ATS.	Non-standard email addresses (e.g., “Immigration@…”), “Global Mobility” teams, or legal departments.
ATS Integration	All applicants are entered into a searchable database, allowing recruiters to source them for other open roles.	Applicants are often not entered into the main ATS, preventing them from being considered for other positions.
Job Description	Written to attract a broad pool of qualified candidates, focusing on key skills and experience.	Hyper-specific requirements tailored to the incumbent’s unique background; may include artificially low salary ranges.

This side-by-side comparison makes it clear that the practices employed for PERM positions are not accidental but are part of a calculated strategy. Large technology companies possess some of the most sophisticated and well-resourced human resources departments in the world, yet for this specific class of job postings, they revert to methods that are decades out of date. This stark contrast between their standard operating procedure and their PERM-specific procedure eliminates the possibility of incompetence and points directly to a strategy of “malicious compliance.” The companies fulfill the letter of the outdated DOL regulations (e.g., placing a newspaper ad) while actively violating the spirit of the law and the overarching anti-discrimination provisions of the INA. The intent is not to recruit, but to generate a paper trail that documents a failed recruitment effort.

III. Case Studies in Enforcement: The Department of Justice vs. Big Tech

The most compelling evidence that strategic job concealment is a real and unlawful practice comes from a series of landmark enforcement actions undertaken by the U.S. Department of Justice. The multi-million-dollar settlements with Apple Inc. and Meta Platforms, Inc. have transformed the issue from anecdotal complaint to a federally prosecuted pattern of discrimination. These cases serve as irrefutable proof of the tactics employed and establish a new precedent for corporate liability.

A. The Apple Settlement: A $25 Million Precedent

In November 2023, the DOJ announced a landmark settlement with Apple Inc. to resolve an investigation that began in 2019 into the company’s PERM-related recruitment practices.13 The settlement is the largest ever recovered by the DOJ under the anti-discrimination provision of the Immigration and Nationality Act.4

• Allegations: The DOJ’s investigation concluded that Apple engaged in a pattern or practice of discrimination based on citizenship status.15 The core of the government’s case rested on the stark differences between how Apple recruited for standard positions versus PERM-related positions. The key findings were:

1. Apple failed to advertise PERM positions on its external, public-facing career website, the primary channel it used to solicit thousands of applications for other roles.13
2. Apple required all applicants for PERM positions to submit physical, paper applications by mail, a practice the DOJ deemed a significant and unlawful barrier designed to deter applicants.4 The DOJ found that these less effective recruitment methods “nearly always resulted in Apple receiving few or no applications to PERM positions from applicants whose permission to work does not expire”.4

• Settlement Terms: To resolve these allegations, Apple agreed to pay a total of $25 million. This sum was divided into $6.75 million in civil penalties to the U.S. Treasury and the establishment of an $18.25 million back pay fund to compensate eligible victims of the discriminatory practices.14
• Mandated Reforms: Beyond the monetary penalties, the settlement imposed significant, forward-looking changes to Apple’s recruitment processes. Apple is now required to ensure its recruitment for PERM positions “more closely matches its standard recruitment practices”.14 This includes mandating that Apple:
• Post all PERM-related positions on its external and internal job websites.
• Accept electronic applications for all PERM-related positions.
• Ensure applicants for PERM roles are entered into its standard applicant tracking system, making them searchable for other roles.
• Cease requiring mail-in applications.15 The company is also subject to DOJ monitoring for a period of three years to ensure compliance.16

B. The Meta (Facebook) Settlements: A Two-Pronged Federal Action

Two years prior to the Apple case, the DOJ and the DOL concluded separate but related settlements with Meta Platforms, Inc. (then Facebook) over similar PERM-related practices. This earlier action set the stage for the DOJ’s heightened scrutiny of the tech industry.

• DOJ Allegations: In December 2020, the DOJ filed a lawsuit against Facebook, alleging that the company “routinely refused to recruit, consider, or hire U.S. workers” for thousands of positions it had reserved for temporary visa holders undergoing the PERM process.2 The allegations mirrored those later leveled against Apple, with the DOJ specifically citing that Facebook:

1. Used recruitment methods designed to deter U.S. workers, such as requiring applications to be submitted by mail only.2
2. Refused to consider U.S. workers who did manage to apply for the positions.20 The DOJ asserted that these practices constituted intentional discrimination against U.S. workers based on their citizenship status, in violation of the INA.2

• DOL Audit Findings: Concurrent with the DOJ’s investigation, the Department of Labor’s Office of Foreign Labor Certification (OFLC) conducted its own audits of Facebook’s pending PERM applications. These audits identified “potential regulatory recruitment violations,” leading to a separate settlement focused on compliance with the DOL’s specific advertising and posting rules.2
• Settlement Terms: The combined federal actions resulted in significant penalties and reforms. Under its settlement with the DOJ, Facebook agreed to pay a $4.75 million civil penalty and establish a fund of up to $9.5 million to compensate eligible victims.2 At the time, this was the largest fine and monetary award ever recovered by the DOJ’s Immigrant and Employee Rights Section (IER).2
• Mandated Reforms: The settlements required Facebook to fundamentally change its PERM recruitment. The company agreed to conduct more expansive advertising and recruitment, accept electronic applications for all PERM jobs through its standard career website, and ensure that these applicants were entered into its regular recruiting systems.20 The DOL settlement also subjected Facebook to ongoing audits to ensure future compliance.21

The consistency across these two landmark cases is striking and demonstrates a clear federal enforcement strategy, as summarized in Table 3.1.

Settlement Component	Apple Inc. (2023)	Meta Platforms, Inc. (2021)
DOJ Investigation Period	Jan 2018 – Dec 2019	Jan 2018 – Sep 2019
Key Allegations	Failure to post PERM jobs on external website; requiring mail-in applications; citizenship status discrimination.	Reserving jobs for visa holders; requiring mail-in applications; refusing to consider U.S. workers; citizenship status discrimination.
Civil Penalty	$6.75 million	$4.75 million
Back Pay Fund	$18.25 million	Up to $9.5 million
Mandated Recruitment Changes	Must post PERM jobs on public career site; must accept electronic applications; must integrate with standard ATS.	Must conduct more expansive recruitment; must accept electronic applications; must align PERM process with standard practices.
Ongoing Monitoring	3 years of DOJ monitoring.	Ongoing DOL audits.

These enforcement actions represent a critical paradigm shift. Historically, PERM compliance was viewed primarily as a procedural matter within the purview of the Department of Labor. Employers focused on checking the boxes of the DOL’s regulations. However, the DOJ’s successful application of the Immigration and Nationality Act has fundamentally altered the legal landscape. The core legal argument is no longer about whether an employer placed a newspaper ad, but whether the employer’s recruitment process, when viewed as a whole, was discriminatory in its intent and effect. This moves the standard from a simple procedural checklist to a substantive test of good faith. The implication for all employers is that their “PERM-only” recruitment tactics, even if they arguably meet the minimal requirements of DOL regulations, are now highly vulnerable to federal prosecution as a form of unlawful discrimination.17

IV. The Rise of Public Scrutiny: Citizen Watchdogs and Corporate Pushback

While federal enforcement has been a critical driver in exposing discriminatory PERM practices, the “failing” aspect of the concealment strategy is also attributable to the efforts of non-governmental actors. A “cottage industry” of tech workers and activists has emerged to counteract corporate opacity, leveraging technology to bring these hidden job markets into the light.10 The corporate reaction to this newfound transparency provides some of the most compelling evidence that the concealment strategies were both deliberate and effective until exposed.

A. Exposing the Hidden Market: The Role of Jobs.now

At the forefront of this citizen-led effort is a group and website known as Jobs.now. This platform was created by individuals within the tech community who were frustrated by the difficulty of finding work while knowing that major companies were simultaneously claiming a lack of qualified U.S. talent to justify their PERM applications.11 The stated mission of Jobs.now is to combat what its founders see as unfair practices that disadvantage American workers during a time of economic uncertainty.10
The operational model of Jobs.now is simple yet disruptive. It systematically scours the very channels that companies use for obscure compliance—such as local newspaper classifieds, state workforce agency websites, and esoteric online boards—and aggregates these PERM-related job postings into a single, centralized, and easily searchable database.7 Since its launch, the group claims to have posted thousands of such jobs from major companies like Meta and Stripe.10
By doing so, Jobs.now directly attacks the principle of “security through obscurity” on which the corporate concealment strategy relies. The strategy is only effective if the information about the job opening remains fragmented and difficult for the target audience of qualified professionals to find. By centralizing this information, Jobs.now corrects the information asymmetry, allowing any interested U.S. worker to find and apply for these roles. This action can directly disrupt a company’s PERM application, as the process can be halted if a sufficient number of qualified U.S. workers apply for the position.12

B. Case Study in Corporate Reaction: Instacart’s Cease-and-Desist

The effectiveness of this public scrutiny is best demonstrated by the aggressive corporate response it has provoked. In September, the grocery delivery company Instacart took the notable step of sending a formal cease-and-desist letter to Jobs.now.10
In the letter, Instacart’s lawyers made the extraordinary claim that the “unfettered sharing of its job openings constitutes ‘a misappropriation and violation of the rights of Instacart.'” The company demanded that Jobs.now “suspend” its website and even claimed that the “damages” it incurred from the resulting “influx of applicants” entitled it to monetary compensation. Jobs.now characterized the letter as an “intimidation tactic” designed to “silence free speech promoting job openings to American citizens” and temporarily complied with the demand to remove Instacart’s listings while it explored its legal options.10
Instacart’s legal maneuver is a powerful, albeit inadvertent, admission of the efficacy of Jobs.now’s mission. A company would not expend significant legal resources to suppress the dissemination of publicly available information unless that dissemination posed a material threat to a core business process. In this context, the “damage” caused by an “influx of applicants” is precisely the intended outcome of a legitimate labor market test. Instacart’s reaction reveals that its PERM recruitment process was not designed to handle, or even welcome, a genuine applicant pool.

The company’s claim that it was harmed by receiving too many applications for its open positions confirms that the exposure provided by Jobs.now was successfully disrupting its ability to certify to the Department of Labor that no qualified U.S. workers were available. This aggressive pushback validates the entire premise of the watchdog’s mission and serves as the strongest possible evidence that the concealment of PERM jobs is a deliberate strategy, one that fails the moment it is exposed to public light.

V. Contextualizing the Phenomenon: “Hidden Jobs,” “Ghost Jobs,” and Legitimate Hiring

To conduct a truly expert analysis, it is crucial to differentiate the specific, unlawful practice of PERM-related job concealment from other, broader labor market phenomena that are often conflated with it. The terms “ghost jobs” and the “hidden job market” describe distinct concepts with different motivations and legal implications. A nuanced understanding of these differences is essential for accurately diagnosing the problem and formulating effective policy solutions.

A. “Ghost Jobs”: A Different Phantom

The term “ghost job” or “phantom job” refers to a job posting for a position that is either not real or for which the company has no immediate intention of hiring.23 While frustrating for job seekers, the motivations behind posting ghost jobs are distinct from those driving PERM concealment. Common reasons include:

• Building Talent Pipelines: Companies may post “evergreen” requisitions for common roles to continuously collect resumes, creating a pipeline of potential candidates they can tap when a real vacancy arises. This reduces future time-to-hire.24
• Market Research: A ghost job posting can be a low-cost way to gauge the talent pool for a potential future role, gathering data on available skills, experience levels, and salary expectations without committing to a hire.24
• Projecting an Image of Growth: A steady stream of job postings can make a company appear to be expanding and successful, which can be beneficial for attracting investors, clients, and future talent, or for pacifying overworked current employees with the impression that help is on the way.24
• Internal Requirements: In some cases, a job is posted publicly to satisfy an internal policy requiring an external search, even when an internal candidate is already slated for the role.25

The critical distinction is this: a ghost job typically has no pre-selected candidate and often no actual, currently available job. The posting itself is a tool for data collection or branding. In contrast, a concealed PERM posting is for a very real job that is already filled by a specific, pre-selected individual (the temporary visa holder). The posting is not a tool for recruitment but a piece of regulatory fiction created to fulfill a legal requirement.

B. The “Hidden Job Market”: Legitimate Unadvertised Openings

The concept of the “hidden job market” refers to the large number of genuine job openings that are never publicly advertised. Unlike PERM concealment or ghost jobs, this practice is driven by legitimate, rational, and often highly efficient business strategies. Employers have several valid reasons for not publicizing every opening:

• Prioritizing Internal Hiring: Many companies prefer to promote from within. Hiring an internal candidate is significantly faster, cheaper, and less risky than hiring an external one. Internal hires are already familiar with the company culture, require less onboarding, and have a proven track record.29 Data shows that internal hires have higher performance and retention rates, while external hires may command 18-20% higher salaries and are 61% more likely to be terminated.30
• Maintaining Confidentiality: A public job posting can reveal sensitive corporate strategy. A company may be developing a new product line, expanding into a new market, or planning a reorganization that it does not want to signal to competitors. Similarly, if a position is being backfilled for an underperforming employee who has not yet been terminated, discretion is paramount.29
• Leveraging Employee Referrals: Employee referrals are consistently ranked as one of the highest-quality sources of new hires. Companies often incentivize employees to refer candidates from their networks, and they may exhaust this high-quality channel before incurring the cost and effort of a public search.29
• Avoiding Application Overload: For well-known companies, a single public job posting can attract hundreds or even thousands of applications, the vast majority of which may be from unqualified candidates. Sifting through this volume places an immense burden on human resources departments, making a more targeted, non-public search a more efficient option.33 This is particularly true for high-level executive positions, which are rarely advertised publicly.29

These practices constitute a legitimate “hidden” market, accessible primarily through networking, internal mobility, and relationships with recruiting agencies.33 This stands in stark contrast to PERM concealment, which involves the public posting of a job with the deliberate intent of it not being found or applied for by qualified candidates.

The legality and ethics of any particular hiring practice ultimately hinge on the employer’s intent. While the outcome for an external job seeker might appear similar in all three scenarios—unawareness of an opportunity or a wasted application—the underlying purpose is what separates legitimate business strategy from unlawful discrimination. Promoting an internal candidate is an act of efficient talent management. Posting a ghost job to mine resumes is an ethically questionable but primarily market-driven practice. Creating a PERM-related job posting with built-in barriers to application, however, has the specific and unlawful intent to discriminate against a protected class (U.S. workers) to secure an immigration benefit for a non-protected individual. This fundamental difference in intent is why PERM concealment has attracted the scrutiny of the Department of Justice and requires a distinct and targeted set of policy solutions.

VI. Statistical Landscape of the PERM Program

To fully grasp the scale and impact of the issues within the PERM program, it is essential to ground the analysis in quantitative data. Official statistics from the Department of Labor provide a clear picture of the program’s volume and, more importantly, its concentration within specific sectors of the U.S. economy. This data reveals that the PERM process is not a broad-based immigration tool but a highly specialized pipeline, primarily serving the technology industry’s goal of converting its temporary foreign workforce into permanent residents.

A. Application Volume and Processing

The PERM program operates at a significant scale. In the first quarter of Fiscal Year 2023 (October to December 2022) alone, the DOL received 40,826 applications. During that same period, it processed over 26,000 applications, certifying 22,858, denying 1,670, and marking 1,557 as withdrawn. As of the end of that quarter, the backlog of pending applications stood at a massive 120,555.35 This high volume underscores the importance of the program’s integrity, as any systemic flaws affect tens of thousands of positions annually.

B. Who Uses PERM? Key Industries, Occupations, and Locations

The DOL’s data on certified applications reveals a striking concentration in the technology sector. The top occupations, industries, and states of employment all point to the tech economy as the program’s dominant user.
As shown in Table 6.1, the top five occupations for which PERM applications were certified are all in computer science and data analysis. “Software Developers, Applications” and “Software Developers, Systems Software” alone accounted for nearly 35% of all certifications in Q1 FY2023. When combined with IT Project Managers and Computer Systems Analysts, the figure rises to over 50%.35
This occupational focus is mirrored in the industry data. The “Professional, Scientific, & Technical Services” sector, which encompasses many tech and consulting firms, was responsible for 36.5% of all certifications. This was more than double the next largest industry, Manufacturing. Geographically, the program’s use is concentrated in states with major tech hubs: California led with 20.3% of certifications, followed by Texas, New York, and Washington.35

Rank	Occupation/Industry	Number of Certifications	Percentage of Total
Top 5 Occupations
1	Software Developers, Applications	5,138	22.5%
2	Software Developers, Systems Software	2,833	12.4%
3	Information Tech. Project Managers	2,306	10.1%
4	Computer Systems Analysts	1,357	5.9%
5	Statisticians	843	3.7%
Top 5 Industries
1	Professional, Scientific, & Technical Services	8,343	36.5%
2	Manufacturing	3,597	15.7%
3	Retail Trade	2,374	10.4%
4	Information	1,975	8.6%
5	Finance & Insurance	1,620	7.1%
(Source: U.S. Department of Labor, PERM Selected Statistics, FY 2023 Q1) 35

C. Who Benefits? Visa Status and Country of Origin

The data also clarifies for whom companies are using the PERM process. It is overwhelmingly a mechanism for retaining employees who are already working for the company in the U.S. on temporary visas. In Q1 FY2023, 66.8% of all certified PERM applications were for individuals on H-1B visas, the primary temporary visa for high-skilled specialty occupations.35
The national origins of the beneficiaries are also highly concentrated. Workers from India accounted for 56.6% of all certifications, more than all other countries combined. Workers from China were a distant second at 9.5%.35

This statistical landscape leads to a crucial conclusion: the PERM program, in practice, functions as a high-volume pipeline for the U.S. technology industry to convert its existing H-1B workforce, largely from India and China, into permanent residents. It is not primarily a tool for recruiting new talent from abroad but rather the final and most critical step in a long-term talent retention strategy. This heavy concentration means that the integrity of the PERM system is not a marginal issue affecting a diffuse set of employers and workers. Instead, any dysfunction, abuse, or perceived unfairness within the program has outsized economic and political implications, directly impacting the competitiveness of a cornerstone of the U.S. economy and fueling contentious debates over domestic STEM workforce development, global talent acquisition, and the fairness of the immigration system itself.

VII. Analysis and Recommendations for Policy Reform

The evidence presented throughout this report—from the structural flaws in the PERM regulations to the documented patterns of unlawful corporate behavior and the ensuing federal enforcement actions—paints a clear picture of a system in conflict with its purpose. The gap between the statutory intent of the PERM process to protect U.S. workers and its practical application by some of the nation’s largest employers is significant and undeniable. To restore the integrity of the high-skilled immigration framework, targeted policy reforms are essential.

A. Synthesis of Findings: A System in Conflict with its Purpose

The core problem is an inherent conflict of interest embedded within the PERM process. The system requires an employer, who has already invested years in training and integrating a valued foreign national employee on a temporary visa, to conduct a good-faith search for a U.S. worker to replace that individual. This is a fundamentally irrational business expectation.
This conflict is exacerbated by a flawed regulatory framework that relies on employer attestation and mandates outdated recruitment methods. This combination has incentivized a strategy of “malicious compliance,” where companies fulfill the procedural letter of the law while engineering the recruitment process to fail in practice. The landmark DOJ settlements with Apple and Meta provide definitive proof that this is not a theoretical concern but a documented pattern of unlawful discrimination based on citizenship status. The rise of public watchdog groups has further exposed these practices, demonstrating that the strategy of concealment is only viable as long as it remains hidden. The system, as currently designed, encourages behavior that is directly contrary to its stated mission.

B. Pathways to Reform: Modernizing and Enforcing the Law

Addressing these systemic issues requires a multi-pronged approach that modernizes outdated rules, removes the central conflict of interest, and enhances enforcement. Based on the analysis of the system’s failures and the remedies imposed in successful enforcement actions, the following reforms are recommended:

1. Modernize Recruitment Requirements: The Department of Labor must overhaul the regulations at 20 C.F.R. § 656.17 to reflect the realities of the 21st-century job market. The mandate for print newspaper advertisements, a relic of a bygone era, should be eliminated. In its place, the regulations should require practices that align with a genuine, good-faith recruitment effort. Drawing directly from the terms of the Apple and Meta settlements, new rules should mandate that all PERM-related positions be:

• Posted on the employer’s primary, public-facing career website for a minimum duration.
• Advertised on at least one leading national third-party job board relevant to the profession.
• Able to accept electronic applications through the company’s standard Applicant Tracking System (ATS).15 These changes would make it significantly harder for employers to obscure job openings and would align the PERM process with their own standard, effective recruitment practices.

1. Shift the Labor Market Test Timeline: A more fundamental reform would be to address the core conflict of interest by changing when the labor market test is performed. As suggested in the foundational opinion piece, policymakers should consider requiring companies to conduct and certify a search for qualified U.S. workers before they are permitted to hire a foreign national on a temporary work visa, such as an H-1B.10 At this initial stage, the company has not yet invested in a specific foreign worker and has a more genuine incentive to hire a U.S. worker if one is available. Performing the test years later, at the green card stage, almost guarantees a perfunctory effort. This shift would align the timing of the test with the moment of true market need, drastically reducing the incentive to “game” the system.
2. Enhance DOL Auditing and DOJ Enforcement: The attestation-based model has proven insufficient. The DOL should significantly increase the rate of random, comprehensive audits to verify the documentation and good faith of recruitment efforts. The stark difference in denial rates between audited and non-audited cases demonstrates that the threat of an audit is a powerful compliance tool.9 Concurrently, the Department of Justice must continue its robust enforcement of the INA’s anti-discrimination provisions. The success of the Apple and Meta cases has established a powerful legal precedent that recruitment practices must be substantively non-discriminatory, not just procedurally compliant. Continued high-profile enforcement will serve as a potent deterrent to other employers.

C. Concluding Thoughts: Restoring Trust in the High-Skilled Immigration System

The strategic concealment of job openings within the PERM process undermines the foundational principles of U.S. immigration and labor law. It harms U.S. workers by denying them a fair opportunity to compete for high-skilled jobs, and it damages the long-term integrity of the immigration system itself. A system that is widely perceived as being “gamed” by powerful corporations erodes public trust and makes it more difficult to have a rational, evidence-based debate about the economic benefits of high-skilled immigration.
Implementing the proposed reforms—modernizing recruitment rules, shifting the test timeline, and bolstering enforcement—is essential not only to protect the domestic labor market but also to ensure that the U.S. remains a premier destination for global talent by operating a system that is transparent, fair, and legitimate. Restoring the integrity of the PERM process is a critical step toward building a high-skilled immigration framework that serves the best interests of the American economy and its workers.

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