Senator Abraham Chides INS
for Flaws in H1B Counting Methodology
Posted Mar 17, 2000

On February 25, 2000, Senator Spencer Abraham, Chairman of the Immigration Subcommittee, wrote to INS Commissioner Doris Meissner for clarification on the H1B counting audit that the agency commissioned of the well-known accounting and consulting firm known as KPMG. Apparently, the instructions provided to KPMG by INS will seriously undermine any effort to obtain an accurate audit.

The Senator stated, "It remains my view that INS counting procedures, including, quite disturbingly, the directions provided to date to KPMG, do not conform to the law and are artificially inflating the annual count of H1B usage to the detriment of employers, employees, and the American economy."

First of all, the law does not appear to allow INS to subtract numbers from the current fiscal year (FY 2000) allocation to correct an alleged miscount in past years. Furthermore, the INS does not even have an accurate count of fiscal year (FY) 1999 H1B usage at this point. The purpose of the KPMG audit is to count the number of H-1Bs used in FY 1999, but according to Abraham, INS has not instructed KPMG properly on how to determine whether a case is subject to the cap.

Abraham stressed that it made no sense to count a case as a "cap case" simply because the boxes 2A (new employment) and 4A (consular processing for visa) were checked on the Form I-129. If a person already in H1B status is choosing to go for a visa abroad, for example if the beneficiary is needs to travel for personal or business reasons, then that person should not be subject to the cap. " Petitions for individuals who are already in H1B status and who are changing employers should not count against the numerical limitations, regardless of where the processing is done. Yet counting all approved petitions in which boxes 2A and 4A are checked will automatically include in the count any such individual who receives processing abroad."

Another problem is the difficulty in determining whether multiple petitions have been filed for the same beneficiary. Apparently, the INS has been cross-checking names, so that a case is only considered to be a duplicate if the first and last name, date of birth and country of birth are all exactly the same. Since many individuals use various versions of their names, Senator Abraham suggested that cases with the same birth date, regardless of name, should all be screened to check whether they are duplicates.

Senator Abraham also raised the issue of persons who have H1B approvals but who may never actually use those visas to work in the U.S., and objected to including such persons in the count. Since it is not possible to know in every case whether the individual will actually enter the U.S., Abraham suggested calling a sampling of companies to find out whether the beneficiaries joined the company. A survey of this type would at least enable the INS to estimate the number of people who do not arrive in the U.S., so that a suitable number could be subtracted from the overall count. Abraham asked in his letter, "What action is INS undertaking to address this issue?"

The Senator concluded his letter with a request for a prompt answer because of the time-sensitive nature of the H1B count. 

We at The Law Office of Sheela Murthy P.C. strongly favor continued Congressional scrutiny of the INS audit process. The H1B quota has been a reality for several years now, and it is difficult to believe that INS is only now focusing its attention to devising an accurate methodology to count H1B cases subject to the cap! If, as Senator Abraham points out, there are flaws in the audit process as well, then we will probably be no closer than before to obtaining accurate figures on H1B usage. Clearly, the INS Commissioner, Doris Meissner herself needs to make this issue a priority.

We have repeatedly been advised that after INS increased its fees and hired more immigration officers their processing times and service would improve. As is often the case, the INS fees continue to increase but the service appears to be deteriorating. In which private business could one ever get away with increasing prices and lowering the quality of service?