Получил письмецо от нашего адвоката. Может кому будет интересно.
January 21, 2000
H-1B Adjudication Backlogs
The Nebraska Service Center recently advised that, as of January 19, 2000,
the NSC was adjudicating H-1B cases received (with a Notice Date of)
November 3, 1999. As of January 19, the service centers were adjudicating
H-1B cases as follows:
VSC November 17
CSC November 12
TSC November 10
NSC November 03
"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. "