Cite as "AILA InfoNet Doc. No. 00030171 (posted Mar. 1, 2000)"
February 25, 2000
The Honorable Doris
425 I Street, NW
Washington, D.C. 20536
I am writing to ask
you to elaborate on several points related to the KPMG H-1B audit that were
discussed in a recent meeting between INS and my staff, and in follow-up phone
My position remains
that the INS does not have the statutory authority to subtract numbers from the
FY 2000 H-1B cap and that attempting to do so would be unacceptable,
particularly given that the results of the KPMG audit at best are aimed at
providing only an estimate of H-1B visa usage for FY 1999.
My staff has raised a
few issues with INS that would make the results of the audit a better gauge of
H-1B usage in FY 1999. Answers to the questions below will help the committee
evaluate, at least in part, any professed validity of the audit as an accurate
measure of the H-1B count.
understanding is that, as originally proposed, your instructions to KPMG were
to count as a "cap case" every approved petition where boxes 2A and
4A were checked. As I explained in my earlier letter, that is certain to result
in an inflated count because the statute specifies that only individuals receiving
H-1B status for the first time should count against the numerical limitation
set by Congress. Petitions for individuals who are already in H-1B 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.
My staff reiterated
this point after reviewing with you the process that KPMG had been directed to
use by INS and suggested that a partial way of improving the accuracy of the
audit would be to direct KPMG to look not only at what boxes on the petition
were checked but also at the supplements attached to the petition forms. In response,
INS indicated that it would direct KPMG to conduct some type of review of the
supplements. Please explain what instructions INS gave to KPMG and what KPMG,
in fact, did in response to those instructions.
Second, according to
the materials provided by KPMG, INS' instructions to determine whether cases
were multiple or duplicate petitions filed on behalf of the same individual
were to require a match of each of five or more fields from the petitions.
According to KPMG, it is defining a duplicate petition as one with
"identical receipt number, last name, first name, date of birth, country
of birth, and approval date." A multiple petition is defined as one with
all of the same fields matching except with a different receipt number. Because
this procedure will miss instances involving the same individual where there
are variations of spelling, first names vs. first initials, middle initials,
etc., it was suggested by my staff that petitions with identical dates of birth
should all be screened as possible duplicates or multiples. What has been your
response to this suggestion?
Third, since INS'
methodology is to count approved petitions without regard to whether an
individual actually used the H-1B visa, this inherently counts individuals who
may not have worked in the United States and is at odds with the way I believe
capped categories for immigrant visas are treated. My staff suggested that INS
instruct KPMG to, at minimum, call a sub-set of companies at least to estimate
what percentage of cases involving approved H-1B petitions had instances of
individuals who did not actually show up for work and use the visa (and thus
should not cap against the numerical limitation.) What action is INS
undertaking to address this issue?
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 H-1B usage to the detriment of employers,
employees, and the American economy.
Due to the time-sensitive
nature and the ongoing audit, I would appreciate a response to the questions
raised in this letter by March 1st.