SENATOR SPENCER ABRAHAM RAISES SERIOUS QUESTIONS ABOUT INS’ H-1B COUNTING PROCEDURES

Senator Spencer Abraham (R-MI), the Chairman of the Senate Immigration Subcommittee and one of the leaders of the 1998 effort to raise the H-1B cap, has written a letter to Attorney General Janet Reno explaining his concern that the INS may be grossly inaccurate in the number of new H-1B visas it has issued this year.  Apparently the letter comes after many attempts by the Senator and his staff to obtain accurate information about the H-1B count and INS methods for determining the count.  It also seems that two December INS memos providing guidance on which cases should count toward the cap were prompted by concerns expressed by Abraham.  However, as many noticed when these memos came out, Abraham did not believe these memos adequately explained the INS’ methodology. 

Because Abraham is such an influential figure in immigration politics, and because his letter so thoroughly and concisely identifies the myriad of problems in the H-1B counting system, we provide an in-depth discussion of the letter.

As background, based on legislation Senator Abraham pushed through in 1998, the H-1B limit for the current year is 115,000 visas. The INS has admitted that it has problems correctly counting which H-1B visas should be counted against the cap, and it has taken some steps to find the source of the problem.  To this end, the INS has been touting its contract with KPMG to audit the fiscal year 1999 H-1B count.  However, the INS focus of this audit has been “systems errors” that may have contributed to a possible miscount.  It is with this proposition that Senator Abraham takes issue.  It is his position that merely blaming the miscount on computer errors does not get to the heart of its cause, which is “whether INS’s instructions on what it wanted the computers to count were right or wrong.”  According to Abraham, “there are several persuasive reasons to believe that these instructions were seriously flawed in a way that systematically inflated the count,” reasons he explains in the rest of the letter.

The letter begins with some very important information on exactly how the INS produces its H-1B count.  They do not take the logical approach – decide when the visa is issued whether it counts toward the cap, make a note of it, and then add all those visas.  Rather, the INS counts all the H-1B visas it issues, totals those, and then subtracts the visas it believes do not count toward the cap.  Thus, it becomes crucial that the INS is able to identify which visas count toward the cap.  By law, only H-1B visas that give that H-1B status to a person for the first time count – that is, visas issued because of a change in employer or in the nature of the job, or concurrent employment or a renewal do not count toward the cap. 

According to the letter, Abraham’s office has repeatedly requested information on INS counting procedures and on the personnel responsible for the counting, information the INS has not provided.  In the letter he again requested the information, and asked the INS to provide it by January 7, 2000.  Specifically, he requested the contract for the KPMG audit, INS instructions for the audit, all contract information between the INS and the contractor responsible for performing the H-1B count, identification of the personnel involved in the count, and all guidelines on counting issued by the INS.  He requested that this information be provided for all years back to fiscal year 1996.

Abraham then notes that even without this requested information, it is possible to arrive at a conclusion on the accuracy of the count.  The conclusion, of course, is that the count is not accurate.  The strongest evidence of this is an INS memo dated December 9, 1999, in which the INS discussed the proper way to fill in Form I-129 to ensure a proper count.  This memo clearly misstates at least one category of cases that applies to the cap.  According to the INS, when the application is marked both “new employment” and “request for consulate notification,” the visa will count against the cap.  As Senator Abraham points out, these are often not cap cases.  A person can be in H status, change jobs or have to renew their visa, and for some reason be in a position where they want or need to pick up their new visa at a foreign consulate.  Clearly if the person already had and H-1B visa this case should not count against the cap, but it seems that it is INS policy to count it. 

And the counting problems may be even worse than would be caused by this problem alone.  A December 3, 1999 INS memo instructed that when an H-1B worker is hired away by a new employer, Form I-129 should be marked “change in employment” rather than “new employment.”  This would avoid improperly counting visas issued to people who were already in H-1B status, but it is contrary to longstanding INS guidance on the way to fill out the form, and is not how most attorneys completed the form. 

Abraham points not only to systemic problems within the INS with regard to counting as evidence that the INS’s count is inaccurate.  There is also evidence of other problems that give one good reason to suspect the INS has been improperly including cases in the cap.  For example, people have been denied O and L visas because they were subject to the cap, which had been reached.  There is, of course, no annual limit on these visas, but the INS uses Form I-129 for them as well.  Also, inquiries about counting in earlier years have forced the INS to admit that it double-counted thousands of visas and announced the cap was reached when in fact there were still visas available.  Finally, the INS has retracted a fact sheet on H-1B usage by certain employers because the information was so wildly inaccurate – e.g., a company with 5000 employees was said to have used 7000 H-1B visas. 

The evidence gathered by Senator Abraham clearly demonstrates that the problems with the H-1B count are not caused solely by some computer error, but are in fact the result of widespread discrepancies between stated INS policy and how the agency actually conducts its internal business.  Hopefully this effort by Senator Abraham will lead to an improvement in the INS’s management of the H-1B program.

In the near term, the letter will surely give powerful ammunition to those who might consider suing the INS if they announce the cap is hit and they cannot back it up with reliable data. It also raises the interesting question of what to do if the INS overcounted visas in previous years. Could those visas now be allocated to the current year? The INS was quick to consider reducing visas for the current year when it revealed a few months back that it may have issued too many visas last year. On that note, the INS now has backed off of this claim.