AILA Letter re: INS Miscount
Posted Mar 05, 2000

AILA's General Counsel sent a letter to the INS General Counsel explaining AILA's concern and frustration with INS's inability to provide any details on the number of H1Bs used against this fiscal year's quota.
 
AILA pointed out a fact that we have been mentioned in previous issues of the MURTHYBULLETIN : it appears that the INS has, for the past three fiscal years, incorrectly failed to approve many H1Bs because the Service was counting cases inaccurately.
 
Factors pointed out by AILA which we have mentioned before are :

a. The law requires that an H1B applicant should be counted against the H1B cap, not an H1B Petition. When more than one petition is filed for the same beneficiary, INS has been incorrectly counting each petition against the cap. This is an error of INS including their alleged overissuance in fiscal year 1999.

b. The different INS Service Centers have inconsistent interpretations of when a case should be counted against the H1B cap. Form I-129 is confusing and some employers have marked "new employment" for an existing H1B applicant intending to work for a new employer, while others have marked "change in previously approved employment."
 
c. INS's focus on names to check whether multiple petitions have been filed for the same person is also flawed, since it is common in South India not to have last names, and for different documents (diplomas, passports, etc.) to indicate the same person's name differently, so that multiple petitions filed for the same beneficiary may indicate the person's name differently.

d. INS cross checking system for names of H1B beneficiaries' is limited to a single fiscal year, even though a majority of changes of employer would occur in different fiscal years.

e. The INS counts every case where the H1B beneficiary requests consular processing against the H1B cap. So an H1B beneficiary who decides to request the INS to send the approval to the consulate to visit family in the home country between jobs, would now be counted against the H1B cap!

f. INS does not have any reliable avenue to track cases where the person never accepted the H1B employment, never left the home country, or entered on another non-immigrant status after the H1B approval for one reason or the other. Examples which we have found at the Law Office of Sheela Murthy include cases where a person entered on F1 student status after an employer had applied for the H1B or persons who entered on an H4 status rather than waiting several months to start working on an H1B, etc.
 
AILA's letter suggested the following remedial actions to be taken by the INS :

i.The private audit, which INS has commissioned, should review the accuracy of the H1B counting methodology.

ii. Each case counted against the H1B cap should be thoroughly reviewed to determine if it is properly subject to the cap.

iii. Each H1B employer should be contacted to confirm if certain H1B petitions were never used, instead of waiting for the employer to write in, and for Service Center personnel to link those letters to actual case files. (INS Service Centers have large backlogs of general correspondence, resulting in several months of delay.)

iv. INS cross checking of names to verify H1B beneficiaries' names should not be restricted to a single fiscal year.

v. A fair and consistent plan to ensure correct H1B counts for future years needs to be developed. AILA offered to assist INS in this respect.

Many of these concerns have been raised by us in previous issues of the Immigration Law Bulletin of the Law Office of Sheela Murthy. We trust that the new positive relationship being forged by the INS General Counsel's office and AILA will help to foster a spirit of trust for the common good of enforcing our immigration laws in a fair and consistent manner.