1400 Eye
Street, N.W., Suite 1200
Washington, DC 20005
Tel. (202) 216-2400 - Fax. (202) 371-9449
DATE: January 10, 2000
TO: Bo Cooper, Esq, INS General Counsel
FROM: Daryl R. Buffenstein, AILA General Counsel
RE: Counting of H-1Bs
As we discussed in our recent meeting, AILA is deeply concerned that INS’ approach to counting H-1Bs appears to have led to extensive multiple counting toward the cap of aliens who should be counted only once, and to inclusion of some who should not be counted at all. As a result, it appears that the INS has, for the past three fiscal years, inappropriately failed to approve thousands of eligible H-1B petitions. That failure has culminated in a significant detriment to the American business community, which is being unnecessarily stymied in its attempts to conduct operations in the international marketplace.
As INS has conceded on numerous occasions, it has a statutory obligation to count aliens to whom visas are issued or nonimmigrant status provided, rather than to count the number of petitions approved. In other words, it is clearly agreed that an alien should be counted only when he initially receives H-1B status. However, various attempts at methodologies applied over the years have all focused on petitions, with the result that many aliens appear to have been counted multiple times. These methodologies must be corrected, and the audits being conducted of the process must focus on the assumptions underlying what is counted to be sure that, indeed, aliens and not petitions have been counted.
The history and nature of the problems are outlined in the attached, but, briefly, the following are the problems that have resulted in the situation that exists today:
Each of these problem areas has its own history of problems since the first efforts of the INS to implement the Immigration Act of 1990 (“IMMACT 90”). These problems and their impact on the current situation are discussed in detail in the attachment titled “Areas of Erroneous Counting.”
As you know, because of the current audit of INS’ counting practices, as well as what we believe is the erroneous conclusion that the INS overallocated H-1Bs last year and the critical requirements of American business for international professionals that may go unmet because of the counting problems, review and correction of the counting processes is essential.
We therefore urge that the following actions be taken immediately:
1. The General Counsel’s office should ensure that the KPMG audit includes a complete review of how each INS unit with any input into the H-1B count determines whether a case is applied to the cap; and whether those determinations are and have been accurate.
2. A complete review be made of each case that has been applied to the cap to determine whether it was properly applied. If those cases cannot be individually identified, then a complete review of all H-1B petitions should be made to re-determine their applicability.
3. Any such reviews must include reference to Part 4 of Form I-129 and to the second question on the H Classification supplement to determine whether H-1B status has already been granted to that individual. No cases of persons already holding H-1B status should be included in the count. Any beneficiary who has not been outside the U.S. for more than one year (such that a new 6-year limit on stay would have begun to run) should be considered to already be holding H-1B status.
4. All petitioners should be contacted to inquire as to whether the approved H-1B petition was ever used. AILA suggests that a form be provided for the petitioner to respond to the inquiry, so that the response is not lost in the Service’s huge backlog of general correspondence.
5. Any cross-checking systems must compare across years, and not be concentrated in a single fiscal year.
6. A consistent, coherent plan must be developed to count future H-1Bs, including revision of current forms to readily capture the information relevant to whether a case is includable in the cap and a system for obtaining and applying information as to whether an H-1B approval was ever actually used.
AILA would like to work with INS to develop methods that correct past practices and count
H-1Bs properly on an ongoing basis. In addition, we see significant reason to believe no overallocation occurred last year. In fact, it seems more likely that an underallocation occurred. In any event, given the uncertainty of the situation, and given the lack of statutory authority, it would be egregious to deduct any perceived overallocation from this year’s count.
We cannot overemphasize how time sensitive this issue is given the circumstances and the critical nature of H-1Bs to the American business community. We look forward to discussing with you the resolution of the problem.
ATTACHMENT – AREAS OF ERRONEOUS COUNTING
Multiple counting of changes of employer.
History
Prior to fiscal 1996, INS routinely counted toward the H-1B cap petitions that sought approval of a change of employer for aliens already granted H-1B status with another employer. When it appeared that the cap had been reached that year, the INS realized that its count had included these cases and made efforts to identify them and back them out of the count. This was done by identifying cases involving “changes in previously approved employment” as opposed to “new employment.” A September 16, 1996 memorandum from the Office of Benefits and related fact sheet dated September 13,1996 made clear that INS agrees that changes of employer should not be counted against the cap.
Despite this recognition that changes of employer are not to be counted, the INS has continued the use of systems that in fact count many changes of employer against the cap. This appears to occur in several ways. First, while INS has been vague about how it derives the information as to whether a case involves a change of employer, the I-129 is the only possible source for this information. Part 2, Item 2 of that form asks the petitioner for the “Basis for Classification.” Practitioners, employers and INS examiners have been given conflicting information as to how to answer this question for changes of employer. Answer 2a, “new employment,” has been the standard answer for a change of employer scenario, based on early instructions given by INS representatives in public forums and based on the fact that the form is completed by the employer, from whose point of view this is new employment. However, recent instructions from and within INS seem to indicate that the proper answer is 2c, “Change in previously approved employment.”
Over the years, different INS officials have provided different answers regarding what is looked at when determining whether a particular petition represents a case that falls under this cap (and, indeed, even who in each INS office looks at and evaluates the information and who determines whether or not a particular case is under the cap). Some have indicated that any answer of 2a indicates that the case is subject to the cap (which operates to improperly subject most change of employer cases to the cap). Others have indicated that if Item 2 is answered “a,” they then look to Item 4, and include the case in the H-1B count if the answer is 4a or 4b (which operates to improperly subject to the cap change of employer situations where the alien is obtaining a visa at a consulate).[1] Still others have made vague references to “other methods” that do not involve looking at the Form I-129, but it is not clear what those other methods might be.
Interestingly, no INS official has referred to Part 4, Item h of Form I-129, which asks whether the alien has been given this classification within the past 7 years, or to the second question of the H Classification supplement, which asks for a list of the alien’s prior periods of stay in the U.S. in H status in the last 6 years. Both of these questions should elicit the crucial information of whether a particular petition is a request for a new grant of H-1B status to an alien, or whether it is simply another petition being filed for an alien who already was granted the status and thus is not countable toward the cap. Yet it appears that INS has never used these questions in its attempts to analyze applicability of a case toward the cap.
“Backing Out” Duplicate Names
It seems likely that one reason so little attention has been given to how to derive sufficient information from Form I-129 to determine if a case is subject to the cap is a false reliance on what has been termed “data cleansing routines” to back out duplicate beneficiary names. Unfortunately, these routines cannot even begin to offer a solution.
The first problem with trying to back out duplicate names is inherent in dealing with a multi-cultural clientele. In many societies, particularly Asian cultures from which a large portion of the beneficiary base is derived, the same name can be expressed in a number of different ways that are not readily understandable to a U.S. employer. Employers, in preparing the I-129, will often use the beneficiary’s documents as the source of the name. However, it is more the rule than the exception that the name of a professional from, for example, India, will be expressed one way on a bachelor’s degree, another way on a master’s degree, yet another way on a passport, and still another way on the resume. As a result, four different employers can, and often do, use four different names for the same person. The “data cleansing” system would not read these names as duplicates, and thus would not recognize that they all represent the same person.
A second, and perhaps even larger, problem is in the way the INS indicates that it runs its cleansing routines. Apparently, names are compared only within a single fiscal year. Since changes of employer are most likely to occur in different fiscal years, this method does not capture the vast majority of changes of status.
Consular Processing of Employer Changes
There is one element of interpreting the Form I-129 in which virtually all instructionsand proposals have been consistent—inclusion of situations in which an alien is changing employer, but achieving the change through a visit to a consulate rather than through what is styled in Item 4 on the form as an “extension or amendment of stay.” These, too, are circumstances in which the person has already been provided the H-1B status and thus should not be counted again. They can arise from many typical situations, including the individual being on vacation outside the U.S., the person having left his previous employment prior to the petition being filed by the next employer and thus not technically eligible for an “extension,” or the person otherwise being out of compliance with the terms of his H-1B approval. Those latter two instances do not mean that the individual would be granted a “new” H-1B. Indeed, the INS has long taken the position that the time during which an alien is out of compliance with the terms of his H-1B would still count toward the 6-year limit on his stay. Thus, any “new” approval of an H-1B petition would be no different from an “extend and amend” approval of change of employer. That alien would already have been counted toward the cap in the year in which he received his H-1B, and would still be inside the six years that he is allowed to be present under an H-1B grant.
Similarly, the alien who is temporarily outside the U.S. also should not be counted again. Unless he has been outside the country for one full year, he is still under the six-year limit on stay that was imposed on him in the year when he was properly counted toward the cap.
Multiple Petitioners for One Alien and Other Unused Numbers
An unfortunate and surprisingly frequent reality in the current market is that potential beneficiaries will accept multiple job offers, without the knowledge of the potential employer, and decide after the H-1Bs are processed which job offer to actually pursue. This phenomenon, made acute by the early reaching of the cap in the last couple of years, has resulted in multiple petitions being filed on behalf of one alien. These beneficiaries may be abroad awaiting a visa, or may be in the U.S. awaiting a change of status.
These situations are admittedly difficult for the INS to identify. The “backing out” of duplicate names has not proven effective for the reasons discussed above. Employers generally do not notify the INS when an alien has decided against working for them.[2] Even if employers do notify the INS, there is no form for such notifications and thus the letters notifying INS go into the “general correspondence” category, handling of which is usually radically backlogged at the Service Centers.
Nevertheless, it is imperative that INS implement a means to identify these cases, which likely account for several thousand H-1B numbers each year. For the future, a means to require employers to provide this information must be instituted. For the past, it will be necessary to call on employers to advise INS of H-1B numbers not used.
Processing Mistakes
A lesser, but still noticeable, problem area has been processing mistakes that result in cases being erroneously applied toward the cap. The largest set in this category has been the multiple approvals of H-1Bs under multiple file numbers for one petition. In particular, this phenomenon seems to have occurred in cases where an H-1B was approved toward the end of the availability of H-1B numbers, and then approved again under a different number at the beginning of the new fiscal year. Thus, these cases were counted once toward the 1999 total and again toward the 2000 total.
[1] This approach apparently has been the official one for the past few weeks. Operational Guidance Memorandum No. FY00-003, dated December 9, 1999, follows the approach of looking to Part 2, Items 2 and 4, to determine if a case is subject to the cap. Even this memorandum adds to the confusion as to whether 2a or 2c indicates a change of employer—its current version seems to indicate that 2c would be marked for a change of employer, but at least one earlier version of the memo indicated that 2a is appropriate for a change of employer circumstance. The history of this recent memorandum seems to be a reflection of the history of how the entire H-1B count has been handled—with confusion and changing information.
[2] There are multiple reasons for this. The first is that it is not clear that the regulations require such notification. One provision that might be read as such a requirement, 8 CFR section 214.2(h)(11)(i), refers only to notifications when a petitioner “no longer employs the beneficiary,” not when a petitioner has never employed the alien at all. Another provision that may be more to the point, 8 CFR section 214.2(h)(8)(ii)(D), does state that a petitioner is to notify INS if a number is not used, but that provision is couched more as an expectation that underlies INS’ internal processes for counting than as an imperative for employers, and in any event is part of an overall section on procedures for counting H-1Bs that the INS itself has never followed. The second reason is that none of these regulatory requirements have any impact on employers, so that they often do not know they exist or see no reason to follow them. Finally, many employers continue to hope that the alien will eventually come to work there, and thus are unwilling to give up an approval in hand.