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AILA RELEASES LETTER ON H-1B COUNTING ISSUES
A letter from the American Immigration Lawyers Association written to the INS about the agency’s problems counting H-1B visas has been made public.  Like the letter from Senator Spenser Abraham, Chairman of the Immigration Subcommittee, on the same subject (which we reported on last month), the AILA letter points out many of the obvious problems with the INS’ approach to its obligation to administer the annual allocation of H-1B visas.  Some estimate that the INS might be overcounting by as much as 25% to 35%. 
The letter points out one fundamental flaw in INS methodology from which all of the other counting problems may spring.  While it is charged by statute to count the number of people who receive an H-1B visa in a given year, it appears to count the number of petitions approved.  This means that many people are counted two times or more.  ALIA calls for a correction in this procedure and suggests that the ongoing audit immediately address the problem. 
The letters suggests numerous sources of the problem, as well as some possible solutions.  The first problem, one that should not even exist, is that the form used in H-1B petitions, the I-129, does not make clear whether the application is a request for an initial classification for H status.  The INS has given conflicting responses on how to fill out the form to indicate whether it is an initial request, resulting in many different ways of marking the form among employers and multiple ways of reading it within the INS.  The easiest was to solve this problem, of course, would be to create a new form.  In the meanwhile, AILA suggests the INS improve its methods of trying to prevent double counting the same beneficiary.  The INS does this by matching names.  Currently names are only matched in the same fiscal year.  Because this would count someone approved in Year 1 and Year 2 twice, the names should be checked across multiple years.  Also, the INS needs to take into consideration the fact that the same alien might appear with different names on different petitions, particularly those of Asian origin. 
The INS also needs to develop a method for tracking H-1B visas that were approved but never used because employment never began.  Such visas should not be counted against the annual cap, but currently are.  Also, though the numbers of such erroneously counted visas are small, the INS must stop attributing to the cap visas other than H-1Bs that are filed on the same Form I-129. 
AILA urges the INS to make a thorough review of each case it applied to the annual cap to ensure the proper decision was made.  The letter ends with a comment on what is a serious issue in this area – whether the INS will go forward with its plan to count toward this year’s cap visas it claims to have wrongly approved last year after the cap was hit.  AILA says there are good reasons to believe that not only was there no over count last year, but that the full number of available visas was not used. 
Business immigration advocates hope that letters such as this one from AILA, and the Spenser Abraham letter, as well as pressure for the business community, will make the INS ensure that an erroneous declaration that the cap is reached will not be issued.