Are there really US federal laws involving immigration that result in fake job interviews?

Question

On this page someone answered the question “Do employers waste time interviewing people?” with the following:

yes

often it is to conform to federal guidelines - so they are directed to higher the CEO’s nephew, but they get government contracts so they HAVE to follow the proper forms and pretend to interview for the position, wasting managers, HR and candidates time.

This workplace stack exchange answer contains the claim that sometimes employers interview candidates they don’t want to hire because:

They have an H-1B candidate already lined up and ready to go, and they don't actually want to give the job to anyone else, but are legally required to pretend to look for people. Legally, they're supposed to prefer to hire an American worker if possible, but in practice, the law is very difficult to enforce because the company can always come up with some excuse for why candidate X wasn't good enough. And of course, sometimes the H-1B candidate really is irreplaceable.

I have so far been unable to find any official reference to either government contract requirements or federal laws requiring job interviews. Are either of these claims accurate?

Answer 1

Concerning the requirement to interview US workers before hiring workers for H-1B visas, this is covered in 8 USC §1182 (n)(1)(G)(i):

(i) In the case of an application described in subparagraph (E)(ii), subject to clause (ii), the employer, prior to filing the application—

(I) has taken good faith steps to recruit, in the United States using procedures that meet industry-wide standards and offering compensation that is at least as great as that required to be offered to H–1B nonimmigrants under subparagraph (A), United States workers for the job for which the nonimmigrant or nonimmigrants is or are sought; and

(II) has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought.

"Industry-wide standards" for the recruitment process typically means posting advertisements and conducting job interviews. Of course, if the company never intended to hire anyone but the H-1B candidate, that's not really "good faith", but this can be difficult for the feds to prove.

Note that this requirement doesn't apply to all employers. Section (E)(ii) says that this rule only applies to those employers who are "H–1B-dependent" (which amounts to having a certain number of employees working under H–1B visas) and to those who have been caught willfully violating these rules within the past five years.

I am unsure about the rules surrounding federal contracts, so folks should feel free to edit this answer to include such information.