KPMG Report on FY 1999 H-1B Count
Posted Apr 25, 2000

As previously published in the MurthyBulletin, the Immigration and Naturalization Service (INS) has contracted with KPMG Consulting, LLC to review the H-1B count for Fiscal Year 1999.

INS has recently released the KPMG Count Analysis Report. In preparing the Report, KPMG employed a counting procedure using INS' system data and a sampling of actual Forms I-129 to provide a statistically valid estimate of the number of approved H-B petitions. Specifically, KPMG conducted extensive interviews with INS personnel to understand the INS' business practices and counting methodology; compiled information on H-1B petitions from the four Service Centers; consolidated information into a master database; identified and removed duplicate records, revocations, and multiple petitions for the same alien beneficiary; sorted approved H-1B petitions into cap and non-cap categories; and sampled 2,300 H-1B petitions to determine instances of misclassification or data entry problems.

After months of review, KPMG has attested with a 95% confidence level that the number of H-1B petitions which were approved and applied to the Fiscal Year 1999 cap, were between 136,888 and 138,385. Therefore, according to this report, INS has approved between 21,888 and 23,385 H-1B1 Petitions in excess of the cap.

The KPMG Report revealed the following information:

INS determines that a petition is subject to the cap when the following blocks are marked on Part 2 of Form I-129:

• "new employment" (box 2a) and "Notify the office in Part 4 so that the person(s) can obtain a visa or be admitted" (box 4a); or
• "new employment" and "Change the person(s) status and extend their stay since they are all now in the U.S. in another status" (box 4c).

Multiple Petitions are subtracted from the total approved petitions to determine the count for the cap. However, INS has limited capabilities to identify individuals with multiple petitions; INS currently identifies multiple petitions by matching the following biographical information: last name, first name, date of birth, and country of birth. As a result of factors such as subtle variations in names, it is possible for INS to count the same individual more than once against the H1B cap.

KPMG identified the following impediments in its efforts to confirm whether multiple petitions are filed for the same beneficiary: lack of a common identifier to differentiate unique individuals; lack of a service-wide central database that provides immediate confirmation or warnings of possible prior H1B petitions; the lack of most hard copy background information from previous petitions, other than for recent petition files that have not yet been sent to storage facilities; lack of a method to confirm that an individual with prior H-1B status actually obtained the H1B visa, entered the U.S., or worked for the petitioner; and limited methods for the INS to validate errors or changes to a beneficiary's biological information (e.g., misspelled names, change in name, or abbreviations). KPMG states that these obstacles lead to a less than optimal result because H1B petitions identified as multiples may actually be more than one individual with the same biographic information, and the sorting may be too stringent and not identify all valid multiples.

Revocations are also subtracted from the total approved H1B petitions to determine the count for the cap. However, as previously stated in the MURTHYBULLETIN, the INS applies revocations only to the current year's cap until the H1B cap is reached regardless of whether the petition being revoked was originally approved in a different fiscal year. Once the cap has been reached for the fiscal year, INS ceases to apply any revocations to the count. Thus, any further revocations are never accounted for. KPMG points out that if revocations are actually applied to the fiscal year in which the H1B petition was approved, INS would be able to conceivably approve H-1B cap petitions after the cut-off-date. Furthermore, the count would be more accurate.

This KPMG Report clearly indicates that INS continues to have some flaws in its counting methodology for H-1B cap cases. The Law Office of Sheela Murthy, P.C. hopes that as a result of the KPMG Report, INS will implement steps to improve their counting system and more importantly, reduce the tremendous backlogs at INS.

The Law Office of Sheela Murthy, P.C.