GAO REPORT HIGHLY CRITICAL OF H-1B PROGRAM ADMINISTRATION The General Accounting Office report on the H-1B program has finally been made available to the public, and the picture it paints is of agencies without the power or resources to enforce rules relating to the program, and of agencies without any standards of adjudication.
The report first examines the characteristics of the H-1B population. Sixty-four percent are involved in IT related occupations, with the remaining 36% in other H-1B fields, including medicine and teaching. Fifty-seven percent had attainted a bachelor’s degree, and 41% had an advanced degree. The median salary is $45,000, and the median age is 28.3 years. While almost half of H-1B visas were issued to Indian nationals, people from 119 countries received H-1B visas. Almost 45% of people who received H-1B visas were already in the US in another visa status.
The report then addresses the roles of the Department of Labor and INS in administering and enforcing the program. The use of the labor condition application is criticized because the DOL can review it “only for completeness and obvious inaccuracies.” Review is limited because the H-1B is a temporary visa that is to be quickly processed, but it also results in an almost meaningless certification.
Moreover, the DOL can initiate an investigation only after three events – receiving a complaint from an aggrieved party, obtaining information about willful violations within the past five years, or receiving other credible information about violations. The report notes that because H-1B employees are dependent on their employer to maintain legal status in the US, using a complaint driven system of enforcement has not proved to be effective. There is probably reason to believe program noncompliance is prevalent, as 83% of H-1B investigations resulted in the finding of a violation.
The INS also came under fire for its role in the H-1B program. The report found “major differences among and within the different centers in how adjudicators decide which petitions to approve.” For example, within one service center, one adjudicator said that they did not accept credentials evaluations from a certain company, while other adjudicators did. The INS is trying to address this, and in August developed a 75-page operating procedure manual to use when reviewing H-1B petitions.
The INS was also criticized for the way in which it judges performance of adjudicators. Speed and the number of cases processed are the primary performance indicators, which the GAO, and numerous INS adjudicators, felt leads to a premium on speed, not quality. Even with this premium on speed, other INS processing priorities have led to delays in processing H-1B visa applications, which in some cases sit on a shelf for two months before being given to an adjudicator.
Finally, the report noted that because of a lack of conclusive evidence on the state of the IT workforce in the US, it is impossible to say how great the need for H-1B visas is, or how effective the efforts of the DOL and National Science Foundation to provide funding for IT training and education have been.
The report is available online at http://www.gao.gov/new.items/he00157.pdf. < Back | Next > Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. | 
