H-1B Foreign Workers:

Better Controls Needed to Help Employers and Protect Workers

HEHS-00-157: Published: Sep 7, 2000. Publicly Released: Sep 7, 2000.

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Pursuant to a congressional request, GAO provided information on the H-1B program's implementation and implications for the American workforce, focusing on: (1) the jobs that H-1B workers are filling in the United States and the characteristics of those workers; (2) the adequacy of the H-1B visa program's implementation and enforcement; and (3) efforts underway to improve information technology (IT) skills in the American workforce.

GAO noted that: (1) employers have used the H-1B visa program to fill hundreds of thousands of positions in which certain skills, including computer programming, engineering, education, and medicine, were needed quickly; (2) according to Immigration and Naturalization (INS) data, about 60 percent of the positions that new workers were approved to fill in fiscal year (FY) 1999 were related to IT; (3) approved workers were scheduled to fill positions that offered initial annual salaries of median $45,000; (4) workers had a median age of 28 years, and almost half were born in India; (5) despite the H1-B program's success at helping employers bring in highly skilled foreign workers, DOL's limited legal authority to enforce the program's requirements and weaknesses in INS' program administration leave the program vulnerable to abuse; (6) delays and administrative problems have also lead to inefficient service for employers using the program; (7) under law, in certifying employers' initial requests for H-1B workers, DOL is limited to ensuring that the employer's application form has no obvious errors or omissions; (8) it does not have the authority to verify whether information provided by employers on labor conditions, such as wages to be paid, is correct; (9) DOL has limited authority to ensure that employers are actually complying with the law's requirements after the H-1B workers are employed in the United States; (10) DOL generally cannot initiateenforcement actions, even when it believes employers are violating the law; (11) however, DOL agreed with GAO's matter to broaden DOL's enforcement authority for the H-B program; (12) INS is responsible for ensuring that H-1B positions are in fact specialty occupations and that workers granted entry are qualified for those positions; (13) however, there is not sufficient assurance that INS reviews are adequate for detecting program noncompliance or abuse; (14) INS decisions about the priority of H-1B application processing related to other types of petitions handled by INS have resulted in delays of several months to process employers' requests for H-1B workers; (15) other system weaknesses at INS have contributed to errors in counting the number of visas approved under the H-1B visa program; and (16) to enhance U.S. workers' ability to fill IT positions, DOL and the National Science Foundation are working to improve the IT skills of the U.S. workforce.

Matters for Congressional Consideration

  1. Status: Closed - Not Implemented

    Comments: In its comments on the report, Labor's Wage and Hour Division did not favor this action. Moreover, since this report was issued, tremendous changes have occurred that necessitated a significant reorganization of INS. Given these changes and the current political climate, it does not appear that Congress will take any action on this matter in the near future.

    Matter: Given the limited nature of DOL's review of labor condition applications (LCA) consider streamlining the H-1B approval process by eliminating the separate requirement that employers first submits an LCA to DOL for certification. Instead, Congress could require employers to submit an LCA and the I-129 petition simultaneously to INS, which will continue to review and evaluate the information contained on both the LCA and the petition.

  2. Status: Closed - Implemented

    Comments: Labor stated that it has long urged Congress to reconsider and expand the narrow limits of its enforcement authority. The 108th Congress considered these issues and introduced a bill in both houses (S. 1452 and H.R. 2849) that allows the Secretary of Labor to initiate an investigation of any employer that hires H-1B visa workers if the Secretary has reasonable cause to believe that the employer is not in compliance with H-1B requirements. Senator Dodd, who introduced the bill in the Senate, testified that the bill "will finally provide the Labor Department with authority it currently lacks to investigate potential violators of the law and to impose sanctions." Both bills have been referred to committee.

    Matter: If Congress wished to broaden DOL's enforcement authority and improve its ability to enforce relevant provisions in the H-1B law, it could consider, at a minimum, giving DOL's Wage and Hour Division subpoena power to obtain employers' records during investigations under the H-1B program. It could also consider allowing DOL to perform baseline evaluations to determine the extent of employers' compliance with H-1B requirements and conduct subsequent targeted efforts to address suspected noncompliance or abuse.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: The Directorate of Management in the Department of Homeland Securities, which now has responsibility for these activities, implemented a quality assurance program at all service centers. In addition, the Bureau of Citizenship and Immigration Services will incorporate the processing of H-1B visa applications in its quality assurance workload, which can significantly enhance the quality of adjudicators' petition decisions.

    Recommendation: To improve INS' ability to prevent H-1B visa abuse and better serve customers, the Attorney General should direct the Commissioner of INS to enhance existing supervisory review and performance appraisal systems so that adjudicators are held accountable for the correct assessment of petitions as well as for the quantity of reviews they complete.

    Agency Affected: Department of Homeland Security: Directorate of Management

  2. Status: Closed - Implemented

    Comments: In its comments on the report as well as its response to the Chairman of the Senate Governmental Affairs Committee, INS acknowledged the need to upgrade its case tracking system. INS stated that an upgrade then underway would improve adjudicator access to system data on H-1B specific employers and employees. Under the U.S. Citizenship and Immigration Services (CIS), which now has responsibility for processing H-1B petitions, multiple systems captured and managed individuals' identity and background check results, enabled individuals to file for applications, allowed CIS to create and maintain application records, and provided notification of application or benefit status. In some cases, these systems did not share information. Accordingly, CIS defined its business requirements and completed the project plan to develop the new case management system. This upgraded customer-based case processing system provides a single view of an individual and their interactions with CIS so that adjudicators can determine the status of previous applications from an employer. Service-wide implementation is expected by fiscal year 2006.

    Recommendation: To improve INS' ability to prevent H-1B visa abuse and better serve customers, the Attorney General should direct the Commissioner of INS to provide easy access to case-specific information for adjudicators when reviewing petitions as a part of the current upgrade of its computer system.

    Agency Affected: Department of Homeland Security: Directorate of Management

  3. Status: Closed - Implemented

    Comments: In November 2001, INS began updating the national H-1B standard operating procedures, which included processing H-1B visa applications. In April 2004, the Department of Homeland Security finalized these procedures. They include substantial step-by-step descriptions of decisions that adjudicators must make and the criteria they must use to make those decisions. For example, it describes the requirements related to foreign workers having licenses to practice certain occupations and what evidence is required. The step-by-step nature of the procedures can provide greater assurance that adjudicators are adhering to standard procedures when reviewing petitions.

    Recommendation: To improve INS' ability to prevent H-1B visa abuse and better serve customers, the Attorney General should direct the Commissioner of INS to expand upon INS' current efforts to standardize H-1B adjudication procedures by: (1) providing practical guidance to help adjudicators assess the adequacy or sufficiency of documentation and determine when and how to request additional documentation from employers; and (2) having adjudicators document adherence to standard procedures when reviewing petitions.

    Agency Affected: Department of Homeland Security: United States Citizenship and Immigration Services

 

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