Audit of H-1B visa miscount due this month

Feds may still take 1999 surplus from 2000 cap

Auditors from Big Five accounting firm KPMG International will continue to spend time this week at the Immigration and Naturalization Service's visa processing centers, trying to determine how many extra H-1B visas the INS may have granted in fiscal 1999.

The INS said it hasn't ruled out the possibility of deducting additional visas that were granted in fiscal 1999 from the 115,000-visa cap for fiscal 2000 -- a move that remains the subject of heated debate.

"At this point, we're holding off on decisions on what to do with the overage until we have the number of (the) overage," said INS spokeswoman Eyleen Schmidt.

KPMG is expected to announce late this month how many extra visas the INS granted, but the auditor won't issue more comprehensive findings -- such as the cause of the error and recommendations -- until March.

The INS announced in early October that it had granted as many as 20,000 too many H-1B visas in fiscal 1999, which ended Sept. 30. But it backtracked shortly thereafter, saying it didn't know the precise number of visas it had issued.

The INS has ruled out two possible courses of action: revoking any approved H-1B visa petitions or assigning the surplus to past years, when the INS didn't meet its quota. But the fact that the agency is still considering deducting the surplus from this year's quota has prompted criticism from individuals who believe that only Congress has the legal authority to make such a decision.

Congressional Push

Carl Shusterman, an immigration attorney in Los Angeles, said only Congress could take such action, but he added that he doubts Congress would cut into this year's quota. "There's a huge charge among Republicans to raise the H-1B visa cap," he said. In early October, Sen. Spencer Abraham (R-Mich.), chairman of the Immigration Subcommittee, sent a letter to the INS stating that the department lacked "the statutory authority" to reduce the cap for fiscal 2000.

"We won't respond to the senator until we get the overage number. Then we'll have our legal (response) ready as to why we have the authority" to assign the visa surplus to this year's count, Schmidt said.

The INS also announced on Dec. 17 that a statement last June on the number of H-1B visas filed in fiscal 1998 by the top 20 U.S. companies contained erroneous figures. Those companies included Oracle Corp., Lucent Technologies Inc. in Murray Hill, N.J., and KPMG.

Harris Miller, president of the Information Technology Association of America, an industry trade group in Arlington, Va., said he was dismayed by the INS's reporting inaccuracies.

"This (H-1B visa) count has real implications for real employers," said Miller, who added that the mistakes hurt companies and academic institutions that make hiring decisions based on numbers released by the INS.

Schmidt said the INS will "no longer put out numbers until we're sure of the integrity of the data. That's why we demanded a turnaround so quickly (from KPMG). Congress needs (the numbers); employers need them."

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