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Abraham Letter Re H-1B Counting Methodology

Cite as "AILA InfoNet Doc. No. 00030171 (posted Mar. 1, 2000)"

February 25, 2000

The Honorable Doris Meissner
Immigration and Naturalization Service
425 I Street, NW 
Washington, D.C. 20536

Dear Commissioner Meissner:

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 conversations.

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.

First, my 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.


Spencer Abraham
Immigration Subcommittee