I believe your second point (considering foreigners only if no qualified Americans can be found) is already codified into law, or is at least highly suggested.

I believe your second point (considering foreigners only if no qualified Americans can be found) is already codified into law, or is at least highly suggested. From what I understand, companies will tailor the job description in such a manner that the only person who fits the description is the candidate from the outsourcing company.