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Abraham Letter to Meissner re H-1B Count

Cite as "AILA InfoNet Doc. No. 99100657 (posted Oct. 6, 1999)"

October 5, 1999

The Honorable Doris Meissner
Commissioner
Immigration and Naturalization Service 
425 Eye Street, NW
Washington, DC 20536

Dear Commissioner Meissner:

It has come to my attention that the Immigration and Naturalization Service (INS) is considering reducing the number of H1B visas available to high tech and other employers in FY 2000. The theory the INS would operate under to do this is the agency's belief that it issued visas in excess of the FY 1999 cap and, therefore, would compensate for that by, in effect, reducing the FY 2000 cap. Such an action would cause me grave concerns and I believe would exceed the legal authority of the Immigration and Naturalization Service. 

First, given past INS counting procedures on H1B visas it is far more likely that the INS miscounted in a manner that deprived employers of available visas in FY 1999, rather than issued too many visas. In short, I don't believe it when I hear the agency tell Congress that now it is counting correctly. In FY 1996, in response to inquiries from industry, and in FY 1997, in response to my own inquiry, the INS went back and checked its H1B counting procedures and concluded in both instances that it had double?counted thousands of visas and therefore had not reached the H1B visa cap at times when the agency concluded that it had. 

Moreover, this year the INS released a fact sheet on H1B visa usage that indicated the number of visas used by various companies. According to those companies, the INS inflated those firms' actual usage of H1B visas by at least two to four times each, again calling into question any conclusion by the INS that it has awarded an excess number of visas, rather than that it simply did not count visas correctly in the first place. It should be noted that earlier this year at least one service center reported that it was having a difficult time getting its contractor to classify only new cases for counting against the cap. 

Considering that the INS slowed processing as early as April and stopped accepting new petitions for H1Bs in June of this year, it is hard to understand how it could have awarded too many visas, when it had many months to calibrate visa issuance. In a letter dated May 13, 1999, I questioned INS counting methodologies. I have yet to receive a reply to that letter. 

Second, I do not believe the INS possesses the statutory authority to shift visas from one year to the next. If it does have that authority, then it would be just as logical for it to take visas not used in an earlier fiscal year, such as in FY 1994 or FY 1995, and use those numbers against the FY 1999 totals as it would be to take visas out of FY 2000 totals. But in any event, it does not appear that the agency has the statutory authority to do what it is proposing to do.

I would object to the INS unilaterally reducing the FY 2000 cap on H1B visas. Such action not only would lack statutory authority but would be based on what time and again has proven to be inaccurate counting methods utilized by the INS.

Sincerely,

Spencer Abraham
Chairman
Senate Immigration Subcommittee