March 9, 2000
The Honorable Spencer
Abraham
United States Senate
Washington, DC 205 10
Dear Senator Abraham:
Thank you for your letter of February 25
concerning three issues relating to the KPMG H-1B audit. We
appreciate your staff's continued interest in the audit and I
want to address each of your concerns.
Concern: Counting all approved
petitions in which 2A and 4A1
are checked will automatically include in the count any such
individual who is processed abroad. 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. To address this issue, your staff
suggested we review the supplements attached to the petition to help
identify those individuals with previous H-IB status who were
counted against the cap in FY 1999. You have asked for an
explanation of the instructions we provided EPMG for this
supplemental review.
To ensure that we fully addressed this issue
and that the KPMG audit stayed on track, the Office of Internal
Audit assembled a team to perform a complete review of all
supplemental forms in KPMG's sample. The objective was to
determine if information contained on the supplement to the H-1B
petition would have caused a change to part 2 of the petition.
Each supplemental form was examined to determine whether the
alien had current or prior H-1B status. For your information, of
the 1,516 petitions sampled that had been counted against the
Fiscal Year (FY) 1999 cap, 44 (2.9 percent) of the beneficiaries
had prior H-1B status noted on the supplemental form. Three
of the beneficiaries were still in H-1B status at the time of the
petition, and as a result should not have been applied against
the cap for FY 1999. In each of these cases, however, Block 2 of
the form had been incorrectly marked and not revised based on the
adjudicator's review. The remaining 41 petitions covered
individuals who gave up their H-1B status by leaving the country
(27) or changing their status to a classification other than H-1B
while remaining in the country (14). For the remaining 1,472
petitions reviewed (97.1 percent), the beneficiary had never had
H-1B status. The impact of this analysis on the FY 1999 cap will
be disclosed in KMPGs final report.
Concern: The KPMG's procedures for
identifying multiple petitions for the same beneficiary are too
stringent and would miss instances involving the same individual
where there are variations of spelling. Your staff recommended
that petitions with identical dates of birth should be screened
for possible duplicates.
The KPMG will screen data by country and
dates of birth to identify other possible duplicates. The results
of this step will be discussed in the final report.
Concern: Since INS' methodology is to
count approved petitions without regard to whether an individual
actually used the H-1B visa, this counts individuals against the
cap who may not have worked in the United States. Your staff
suggested we instruct KPMG to, at a minimum, call a subset of
companies 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 be counted
against the numerical limitation.)
We did not ask KPMG to include this within
the scope of their work because there is no statutory or
regulatory requirement to only count people against the cap who
show up for work. 8 CFR § 214.2 (h)(8)(D)(ii)(A) states that
only aliens issued visas or otherwise provided nonimmigrant
status will be counted for purposes of the numerical limitation.
In accordance with implementing regulations, promulgated in 1991,
the cap is based on approved petitions filed by U.S. employers on
behalf of H-1B nonimmigrant aliens with certain modifications. 8
CFR § 214.2 (h)(8)(D)(ii)(D) states that when an approved
petition is not used because the alien does not apply for
admission to the United States, the employer shall notify the INS
so the petition approval can be revoked, and the unused number,
if applicable, can be returned to the fiscal year allocation.
Contacting employers would facilitate an assessment of their
compliance with the regulation, but the results could not be used
to adjust the FY 1999 number. At this time we are bound by
existing regulations, but we will revisit this issue in our
upcoming proposed rulemaking.
We will continue to consult with you
regarding KPMG's progress with the audit. If you require
additional information about our efforts to improve the H-1B
programs, please let me know.
Sincerely,
/s/Doris Meissner
1
This refers to part 2 of Forms I-129, “Petition for
Nonimmigrant Worker," where 2A signifies new employment, 4A
signifies the need to notify the appropriate U.S., Consulate or
inspection facility outside the United states, and 4B signifies
the need to