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Testimony: 

Before the Subcommittee on Immigration, Border Security and Claims, 
Committee on the Judiciary, House of Representatives: 

United States Government Accountability Office: 

GAO: 

For Release on Delivery Expected at 2:00 p.m. EDT: 

Thursday, June 22, 2006: 

H-1B Visa Program: 

More Oversight by Labor Can Improve Compliance with Program 
Requirements: 

Statement of Sigurd R. Nilsen, Director Education, Workforce, and 
Income Security: 

GAO-06-901T: 

GAO Highlights: 

Highlights of GAO-06-901T, a testimony before the Subcommittee on 
Immigration, Border Security and Claims, Committee on the Judiciary, 
House of Representatives. 

Why GAO Did This Study: 

The H-1B visa program assists U.S. employers in temporarily filling 
certain occupations with highly-skilled foreign workers. There is 
considerable interest regarding how Labor, along with Homeland Security 
and Justice, is enforcing the requirements of the program. This 
testimony summarizes our report, GAO-06-720, that describes how Labor 
carries out its H-1B program responsibilities and how Labor works with 
other agencies involved in the H-1B program. 

What GAO Found: 

While Labor’s H-1B authority is limited in scope, it does not use its 
full authority to oversee employers’ compliance with program 
requirements. Labor’s review of employers’ applications to hire H-1B 
workers is timely, but lacks quality assurance controls and may 
overlook some inaccuracies. From January 2002 through September 2005, 
Labor electronically reviewed more than 960,000 applications and 
certified almost all of them. Labor’s review of the applications is 
limited by law to checking for missing information or obvious 
inaccuracies and does this through automated data checks. However, in 
our analysis of Labor’s data, we found more than 3,000 applications 
that were certified even though the wage rate on the application was 
lower than the prevailing wage for that occupation. We also found 
approximately 1,000 certified applications that contained erroneous 
employer identification numbers, which raises questions about the 
validity of the applications. In its enforcement efforts, Labor’s Wage 
and Hour Division (WHD) investigates complaints made against H-1B 
employers. From fiscal year 2000 through fiscal year 2005, Labor 
reported an increase in the number of H-1B complaints and violations, 
and a corresponding increase in the number of employer penalties. In 
fiscal year 2000, Labor required employers to pay back wages totaling 
$1.2 million to 226 H-1B workers; by fiscal year 2005, back wage 
penalties had increased to $5.2 million for 604 workers. ; however 
program changes, such as an increase in the visa cap, could have been a 
factor in the increase. Program changes, such as a higher visa cap in 
some years, could have been a contributing factor. In April 2006, WHD 
began randomly investigating willful violators of the program’s 
requirements. Labor uses education as the its primary method of 
promoting compliance with the H-1B program by conducting compliance 
assistance programs and posting guidance on its web site. 

Labor, Homeland Security, and Justice all have responsibilities under 
the H-1B program, but Labor and Homeland Security face challenges 
sharing information. After Labor certifies an application, USCIS 
reviews it but cannot easily verify whether employers submitted 
petitions for more workers than originally requested on the application 
because USCIS’s database cannot match each petition to Labor’s 
application case number. Also, during the process of reviewing 
petitions, staff may find evidence that employers are not meeting their 
H-1B obligations. For example, Homeland Security may find that a 
worker’s income on the W-2 is less than the wage quoted on the original 
application. USCIS may deny the petition if an employer is unable to 
explain the discrepancy, but it does not have a formal process for 
reporting the discrepancy to Labor. Moreover, current law precludes WHD 
from using this information to initiate an investigation of the 
employer. Labor also shares enforcement responsibilities with Justice, 
which pursues charges filed by U.S. workers who allege they were 
displaced by an H-1B worker. From 2000 through 2005, Justice found 
discriminatory conduct in 6 out of the 101 97 investigations closed, 
and cases filed by U.S. workers. assessed a total of $7,200 in 
penalties. 

What GAO Recommends: 

The Congress should consider eliminating the restriction on Labor using 
information from Homeland Security to initiate an investigation and 
directing Homeland Security and Labor to share information on employers 
that may not be fulfilling program requirements., GAO recommends that 
Labor improve its checks of employers’ applications; and that Homeland 
Security’s U.S. Citizenship and Immigration Services (USCIS) include 
Labor’s application case number in its new information technology 
system. Homeland Security agreed with our recommendations. Labor 
questioned whether more stringent checks were necessary and believes 
Congress intentionally limited Labor’s role and placed program 
integrity with USCIS. We believe there are cost-effective methods that 
Labor could use to check the applications more stringently that would 
enhance the integrity of the H-1B process. 

[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-06-901T]. 

To view the full product, including the scope and methodology, click on 
the link above. For more information, contact Sigurd Nilsen at (202) 
512-7215 or nilsens@gao.gov. 

[End of Section] 

Mr. Chairman and Members of the Subcommittee: 

I am pleased to be here today to assist you in your oversight of the H- 
1B nonimmigrant visa program. This program was established to assist 
U.S. employers in temporarily filling certain positions with highly- 
skilled foreign workers. Employers who want to hire H-1B workers must 
attest to meeting certain labor conditions--such as notifying all 
employees of the intention to hire H-1B workers and offering H-1B 
nonimmigrants the same benefits as U.S. workers. A small number of H-1B 
employers are required to make additional attestations concerning the 
non-displacement and recruitment of U.S. workers. In recent years, 
employers have requested more of these workers than are allowed to come 
into the country--the cap on H-1B visas has been reached before or 
shortly after the beginning of each fiscal year. Currently, the annual 
number of H-1B workers authorized to enter the United States is 65,000, 
but in previous years the cap has been as high as 195,000. 

Several agencies are involved in the H-1B visa program. The Departments 
of Labor (Labor), Homeland Security (Homeland Security), and Justice 
(Justice) each have specific responsibilities during certain stages of 
the H-1B visa process, ranging from reviewing and approving an 
employer's request to hire an H-1B worker, to investigating complaints 
from both U.S. and foreign workers. The Department of State also has a 
role in issuing the worker's visa. Recently, there has been 
considerable interest regarding how Labor, in conjunction with the 
other agencies, is ensuring that employers comply with the requirements 
of the H-1B program. 

I will draw on the results of a report we are releasing today that was 
conducted at the request of Chairmen Sensenbrenner and Hostettler, 
Ranking Member Jackson Lee, and Representative Smith, which describes 
(1) how Labor carries out its H-1B program responsibilities and (2) how 
Labor works with other agencies involved in the H-1B program.[Footnote 
1] To address these questions, we interviewed officials from Labor, 
Homeland Security's U.S. Citizenship and Immigration Services (USCIS), 
and Justice. We also reviewed laws and regulations pertaining to the H- 
1B program. We analyzed data on the applications electronically 
reviewed by Labor as well as data on the H-1B complaints received by 
Labor and the outcomes of the associated investigations. We also 
analyzed data on the H-1B petitions received by USCIS and conducted 
site visits to the California and Vermont service centers. Finally, we 
analyzed reports from Justice regarding the outcomes of its 
investigations into charges of U.S. worker displacement by H-1B 
workers. A detailed discussion of our methodology is available in our 
full report. 

In summary, Labor's oversight of the H-1B program is limited even 
within the scope of its existing authority. Labor's review of 
employers' H-1B applications is limited by law to identifying omissions 
and obvious inaccuracies, but we found it does not consistently 
identify all obvious inaccuracies. For example, Labor certified more 
than 3,000 applications even though the wage on the application was 
lower than the wage the employers were required to pay for that 
occupation and location. Labor's Wage and Hour Division (WHD) enforces 
H-1B program requirements by investigating complaints made against H-1B 
employers and recently began random investigations of previous program 
violators. From fiscal year 2000 through fiscal year 2005, complaints 
and violations increased but changes in the program, such as temporary 
increases in visa caps, may have been a factor. Labor shares H-1B 
responsibilities with Homeland Security and Justice, but Labor and 
Homeland Security face challenges sharing information across agencies. 
Homeland Security cannot easily verify whether employers submitted 
petitions for more workers than they originally requested on their 
application to Labor because USCIS's data system does not match each 
petition to Labor's application case number. Additionally, during the 
process of reviewing petitions, USCIS staff told us they may find 
evidence that employers are not meeting their H-1B obligations. 
However, USCIS does not have a formal mechanism to report such 
information to Labor, and current law precludes WHD from using this 
information to initiate an investigation of an employer. Justice 
pursues charges filed by U.S. workers alleging they were not hired or 
were displaced so that an H-1B worker could be hired instead, but it 
has not found discriminatory conduct in most cases. 

To increase employer compliance with the H-1B program and protect the 
rights of U.S. and H-1B workers, Congress should consider eliminating 
the restriction on Labor using petition information submitted by 
employers to Homeland Security as the basis for initiating an 
investigation. Congress should also consider directing Homeland 
Security to provide Labor with information received during the 
adjudication process that may indicate an employer is not fulfilling 
its H-1B responsibilities. To strengthen oversight of employers' 
applications to hire H-1B workers and to help ensure employers are 
complying with program requirements, we recommend that Labor improve 
its procedures for checking for completeness and obvious inaccuracies, 
and, as Homeland Security's USCIS transforms its information technology 
system, it include Labor's application case number in the new system. 

The agencies gave us technical comments on our report and Homeland 
Security agreed with our recommendations. Labor questioned whether more 
stringent checks were necessary and believes Congress intentionally 
limited Labor's role and placed program integrity with USCIS. 

We believe there are cost-effective methods Labor could use to check 
the applications more stringently that would enhance the integrity of 
the H-1B process. 

Background: 

The H-1B program was created by the Immigration Act of 1990, which 
amended the Immigration and Nationality Act (INA).[Footnote 2] The H-1B 
visa category was created to enable U.S. employers to hire temporary 
workers as needed in specialty occupations, or those that require 
theoretical and practical application of a body of highly specialized 
knowledge. It also requires a bachelor's or higher degree (or its 
equivalent) in the specific occupation as a minimum requirement for 
entry into the occupation in the United States.[Footnote 3] The 
Immigration Act of 1990 capped the number of H-1B visas at 65,000 per 
fiscal year. 

Since the creation of the H-1B program, the number of H-1B visas 
permitted each fiscal year has changed several times. Congress passed 
the American Competitiveness and Workforce Improvement Act of 1998 
(ACWIA), which increased the limit to 115,000 for fiscal years 1999 and 
2000. In 2000, Congress passed the American Competitiveness in the 
Twenty-First Century Act (AC-21), which raised the limit to 195,000 for 
fiscal year 2001 and maintained that level through fiscal years 2002 
and 2003. The number of H-1B visas reverted back to 65,000 
thereafter.[Footnote 4] Generally, an H-1B visa is valid for 3 years of 
employment and is renewable for an additional 3 years. 

Filing an application with Labor's Employment and Training 
Administration is the employer's first step in hiring an H-1B 
worker,[Footnote 5] and Labor is responsible for either certifying or 
denying the employer's application within 7 days. By law, it may only 
review applications for omissions and obvious inaccuracies. Labor has 
no authority to verify the authenticity of the information. Employers 
must include on the application information such as their name, 
address, rate of pay and work location for the H-1B worker, and 
employer identification number. All employers are also required to make 
four attestations on the application as to: 

1. Wages: The employer will pay non-immigrants at least the local 
prevailing wage or the employer's actual wage, whichever is higher, and 
pay for nonproductive time caused by a decision made by the employer; 
and offer nonimmigrants benefits on the same basis as U.S. workers. 

2. Working conditions: The employment of H-1B nonimmigrants will not 
adversely affect the working conditions of U.S. workers similarly 
employed. 

3. Strike, lockout, or work stoppage: No strike or lockout exists in 
the occupational classification at the place of employment. 

Notification: The employer has notified employees at the place of 
employment of the intent to employ H-1B workers. 

Certain employers are required to make three additional attestations on 
their application. These additional attestations apply to H-1B 
employers who: (1) are H-1B dependent, that is, generally those whose 
workforce is comprised of 15 percent or more H-1B nonimmigrant 
employees; or (2) are found by Labor to have committed either a willful 
failure to meet H-1B program requirements or misrepresented a material 
fact in an application during the previous 5 years. These employers are 
required to additionally attest that: (1) they did not displace a U.S. 
worker within the period of 90 days before and 90 days after filing a 
petition for an H-1B worker; (2) they took good faith steps prior to 
filing the H-1B application to recruit U.S. workers and that they 
offered the job to a U.S. applicant who was equally or better qualified 
than an H-1B worker; and (3) prior to placing the H-1B worker with 
another employer, they inquired and have no knowledge as to that 
employer's action or intent to displace a U.S. worker within the 90 
days before and 90 days after the placement of the H-1B worker with 
that employer.[Footnote 6] 

After Labor certifies an application, the employer must submit a 
petition for each worker it wishes to hire to USCIS. On March 1, 2003, 
Homeland Security took over all functions and authorities of Justice's 
Immigration and Naturalization Service under the Homeland Security Act 
of 2002 and the Homeland Security Reorganization Plan of November 25, 
2002. Employers submit to USCIS the application, petition, and 
supporting documentation along with the appropriate fees. Information 
on the petition must indicate the wages that will be paid to the H-1B 
worker, the location of the position, and the worker's qualifications. 
Through a process known as adjudication, USCIS reviews the documents 
for certain criteria, such as whether the petition is accompanied by a 
certified application from Labor, whether the employer is eligible to 
apply for H-1B workers, and whether the prospective H-1B worker is 
qualified for the position. 

The Wage and Hour Division of Labor's Employment Standards 
Administration performs investigative and enforcement functions to 
determine whether an employer has complied with its attestations on the 
application. An aggrieved individual or entity[Footnote 7] or certain 
non-aggrieved parties may file a complaint with Labor that an employer 
violated a requirement of the H-1B program. To conduct an 
investigation, the Administrator must have reasonable cause to believe 
that an employer did not comply with or misrepresented information on 
its application. Employers who violate any of the attestations on the 
application are subject to civil money penalties or administrative 
remedy, such as paying back wages to H-1B workers or debarment, which 
disqualifies an employer from participating in the H-1B program for a 
specified period of time. Employers, the person who filed the 
complaint, or other interested parties who disagree with the findings 
of the investigation then have 15 days to appeal by requesting an 
administrative hearing. 

The Office of Special Counsel for Immigration Related Unfair Employment 
Practices (OSC) of the Department of Justice also has some enforcement 
responsibility. Under statutory authority created by the Immigration 
Reform and Control Act of 1986, OSC pursues charges of citizenship 
discrimination brought by U.S. workers who allege that an employer 
preferred to hire an H-1B worker. 

Labor Does Not Use Its Full Authority to Oversee Employers' Compliance 
with Program Requirements: 

Labor's H-1B authority is limited in scope, but it does not use its 
full authority to oversee employers' compliance with program 
requirements. Labor's review of employers' applications to hire H-1B 
workers overlooks some inaccuracies, such as applications containing 
invalid employer identification numbers. WHD investigates complaints 
made against H-1B employers and recently began random investigations of 
some employers who had previously violated program requirements. Labor 
uses education as the primary method of promoting employers' compliance 
with the H-1B program. 

Labor's Review of Employers' Requests Is Fast but May Overlook Some 
Inaccuracies: 

Labor reviews applications electronically[Footnote 8] by subjecting 
them to data checks, and its web site informs employers that it will 
certify or deny applications within minutes based on the information 
entered. We found that of the 960,563 applications that Labor 
electronically reviewed from January 2002 through September 2005, it 
certified 99.5 percent. 

Labor's review of the application is limited by law to identifying 
omissions or obvious inaccuracies. Labor defines an obvious inaccuracy 
as when an employer: 

* files an application after being debarred, or disqualified, from 
participating in the H-1B program; 

* submits an application more than 6 months before the beginning date 
of the period of employment; 

* identifies multiple occupations on a single application; 

* states a wage rate that is below the Fair Labor Standards Act minimum 
wage; 

* identifies a wage rate that is below the prevailing wage on the 
application; and: 

* identifies a wage range where the bottom of the range is lower than 
the prevailing wage on the application. 

Despite these checks, Labor's system does not consistently identify all 
obvious inaccuracies. For example, although the overall percentage was 
small, we found 3,229 applications that were certified even though the 
wage rate on the application was lower than the prevailing wage for 
that occupation in the specific location (see table 1).[Footnote 9] 

Table 1: Examples of Wage Rates and Prevailing Wages on Labor Condition 
Applications That Were Incorrectly Certified: 

Sample applications: Application 1 FY 2002; 
Application wage rate: $60,163 per year; 
Application prevailing wage: $83,833 per year; 
Application status: Certified. 

Sample applications: Application 2 FY 2003; 
Application wage rate: $37,784 per year; 
Application prevailing wage: $52,876 per year; 
Application status: Certified. 

Sample applications: Application 3 FY 2004; 
Application wage rate: $32,000 per year; 
Application prevailing wage: $35,000 per year; 
Application status: Certified. 

Sample applications: Application 4 FY 2005; 
Application wage rate: $55,000 per year; 
Application prevailing wage: $75,000 per year; 
Application status: Certified. 

Source: GAO analysis of Department of Labor data. 

[End of table] 

Additionally, Labor does not identify other errors that may be obvious. 
Specifically, Labor told us its system reviews an application's 
employer identification number[Footnote 10] to ensure it has the 
correct number of digits and that the number does not appear on the 
list of employers who are ineligible to participate in the H-1B 
program. However, we found 993 certified applications with invalid 
employer identification number prefixes. Officials told us that in 
other programs, such as the permanent employment program, Labor matches 
the application's employer identification number to a database with 
valid employer identification numbers. However, they do not formally do 
this match with H-1B applications because it is an attestation process, 
not a verification process. 

Likewise, Labor officials told us they frequently review the 
application process to determine where improvements can be made, but 
they rely on a system of data checks rather than a formal quality 
assurance process because of the factual nature of the form and the 
number of applications received. Also, officials said if they conducted 
a more in-depth review of the applications, they could overreach their 
legal authority and increase the processing time for applications. 
Additionally, they said the integrity of the H-1B program is ensured 
through enforcement and by the fact that there is actual review by 
staff when the employer submits the paperwork to USCIS. 

Labor Investigates Complaints, and Has Begun the Process of Randomly 
Investigating Previous Violators: 

Labor enforces H-1B program requirements primarily by investigating 
complaints filed against employers by H-1B workers or others. Labor's 
Wage and Hour Division received 1,026 complaints from fiscal year 2000 
through fiscal year 2005. Labor officials said they investigate the 
employer's compliance with all program requirements for all H-1B 
workers; therefore, an investigation may yield more than one violation. 

While the number of H-1B complaints and violations has increased from 
fiscal year 2000 through fiscal year 2005, the overall numbers remain 
small and may have been affected by changes to the program. As shown in 
table 2, we found that the number of complaints increased from 117 in 
fiscal year 2000 to 173 in fiscal year 2005, and the number of cases 
with violations more than doubled, along with a corresponding increase 
in the number of employer penalties. In fiscal year 2000, Labor 
required employers to pay back wages totaling $1.2 million to 206 H-1B 
workers; by fiscal year 2005, back wages penalties had increased to 
$5.2 million for 604 workers. The most common type of violation each 
fiscal year involved a failure to pay H-1B workers the required wage. 
Labor officials told us it is difficult to attribute changes in 
complaints and violations to any specific cause because of multiple 
legislative changes to the program, such as the temporary increase in 
the number of H-1B workers allowed to enter the country and the 
additional attestations for certain employers that expired and then 
were reinstated. 

Table 2: H-1B Complaints, Violations, Back Wages Due, and Civil Money 
Penalties Assessed: 

Fiscal year: 2000; 
Number of complaints: 117; 
Number of cases with violations: 93; 
Amount of back wages due (millions): $1.2; 
Number of employees due back wages: 226; 
Civil money penalties assessed: $21,000; 
H-1B fiscal year cap[A]: 115,000. 

Fiscal year: 2001; 
Number of complaints: 192; 
Number of cases with violations: 67; 
Amount of back wages due (millions): 0.6; 
Number of employees due back wages: 135; 
Civil money penalties assessed: 17,750; 
H-1B fiscal year cap[A]: 195,000. 

Fiscal year: 2002; 
Number of complaints: 238; 
Number of cases with violations: 210; 
Amount of back wages due (millions): 3.8; 
Number of employees due back wages: 830; 
Civil money penalties assessed: 48,350; 
H-1B fiscal year cap[A]: 195,000. 

Fiscal year: 2003; 
Number of complaints: 148; 
Number of cases with violations: 264; 
Amount of back wages due (millions): 4.0; 
Number of employees due back wages: 552; 
Civil money penalties assessed: 136,890; 
H-1B fiscal year cap[A]: 195,000. 

Fiscal year: 2004; 
Number of complaints: 158; 
Number of cases with violations: 271; 
Amount of back wages due (millions): 4.2; 
Number of employees due back wages: 390; 
Civil money penalties assessed: 114,125; 
H-1B fiscal year cap[A]: 65,000. 

Fiscal year: 2005; 
Number of complaints: 173; 
Number of cases with violations: 217; 
Amount of back wages due (millions): 5.2; 
Number of employees due back wages: 604; 
Civil money penalties assessed: 103,350; 
H-1B fiscal year cap[A]: 65,000. 

Fiscal year: Total; 
Number of complaints: 1,026; 
Number of cases with violations: 1,122; 
Amount of back wages due (millions): 19.0; 
Number of employees due back wages: 2,737; 
Civil money penalties assessed: 441,465; 
H-1B fiscal year cap[A]: N/A. 

Source: GAO analysis of Department of Labor, Wage and Hour Division 
data, the American Competitiveness and Workforce Improvement Act of 
1998, and the American Competitiveness in the Twenty-First Century Act 
of 2000. 

[A] N/A = not applicable. 

[End of table] 

Labor's Wage and Hour Division has recently begun random investigations 
of employers who have willfully violated H-1B program requirements in 
the past. Under the INA, as amended, Labor has had the authority to 
conduct these investigations since 1998, but officials told us the 
agency had not done so until recently for several reasons. First, these 
employers frequently go out of business because they are not allowed to 
participate in the H-1B program for a period of time. Second, there are 
only a limited number of willful violators--just 50 nationwide in late 
fiscal year 2005. In addition, we were told that H-1B investigators 
have heavy caseloads. However, Labor officials said they now have 59 
cases that they can investigate, and in April 2006, directed each of 
their regional offices to initiate a random investigation of at least 
one employer prior to the end of fiscal year 2006. 

Labor Relies Primarily on Education to Promote Employer Compliance: 

Labor uses education as the primary method of promoting employer 
compliance with the H-1B program. From 2000 through 2005, Labor's 
district offices conducted six presentations on H-1B compliance. Labor 
also holds compliance seminars in response to requests from employer 
associations and discusses program requirements with companies that do 
not have pending lawsuits related to the H-1B program. Additionally, 
Labor posts guidance and fact sheets on its web site. While some of its 
fact sheets have not been updated since the program was amended by the 
H-1B Visa Reform Act in 2004, officials said 26 new fact sheets will be 
posted on the agency's web site by the end of fiscal year 2006. During 
investigations of employers, Labor explains the employer's legal 
obligations and asks the employer about the changes it plans to make to 
comply with the law. When an investigation results in an employer's 
debarment, Labor publicizes the case through press releases 
highlighting the consequences for not complying with H-1B program 
requirements. Labor is also working with the Department of State to 
provide information cards to H-1B workers when they are issued their 
visa. These cards inform them about their employment rights, including 
required wages and benefits, illegal deductions, working conditions, 
records, and discrimination. 

Homeland Security and Justice also use education to promote employer 
compliance with the H-1B program. Homeland Security publishes 
informational bulletins and uses its web site to advise the public of 
any changes to the program regarding filing fees or eligibility 
resulting from changes in the law. Justice engages in educational 
activities through public service announcements aimed at employers, 
workers, and the general public. The agency trains employers and works 
with other federal agencies to coordinate employer education programs. 
Justice also uses a telephone intervention hotline to resolve disputes 
between U.S. workers and H-1B employers, answers questions submitted 
via e-mail, issues guidance, and provides information on its web site. 

Labor and Homeland Security Face Challenges Sharing Information: 

Labor, Homeland Security, and Justice all have responsibilities under 
the H-1B program, but Labor and Homeland Security face challenges 
sharing information that could help identify possible program 
violations. In addition to Homeland Security, Labor also shares 
enforcement responsibilities with Justice, which pursues charges filed 
by U.S. workers who allege that they were not hired or were displaced 
because of an H-1B worker. Justice has found discriminatory conduct in 
relatively few cases. 

Labor and Homeland Security Coordinate to Process Employers' Requests 
to Hire H-1B Workers, but Do Not Use Certain Information to Investigate 
Possible Violations: 

Homeland Security reviews Labor's certified application as part of the 
adjudication process; however, it cannot easily verify whether 
employers have submitted petitions for more workers than originally 
requested on the application. USCIS's data system does not match each 
petition to its corresponding application because the system does not 
include a field for the unique number Labor assigns each application. 
As a result, USCIS cannot easily verify how many times the employer has 
used a given application or which petitions were supported by which 
application, potentially allowing employers to use the application for 
more workers than they were certified to hire. USCIS told us that while 
it has attempted to add Labor's application case number to its 
database, it has not been able to because of the system's memory 
limitations and it will be several years before a new information 
technology system is operational. 

During the process of reviewing employers' petitions, USCIS may find 
evidence the employer is not meeting the requirements of the H-1B 
program, but current law precludes Labor's Wage and Hour Division from 
using this information to initiate an investigation of the employer. 
Some petitions to extend workers' H-1B status have been submitted with 
W-2 forms where the wage on the W-2 was less than the wage the employer 
indicated it would pay on the original Labor application, according to 
USCIS staff. If the employer is unable to adequately explain the 
discrepancy, USCIS may deny the petition but does not have a formal 
mechanism for reporting these discrepancies to Labor. Moreover, even if 
USCIS did report these cases, current law precludes WHD from using the 
information to initiate an investigation. According to officials from 
Labor, it does not consider Homeland Security to be an aggrieved party; 
therefore, Labor would not initiate an investigation based on 
information received from, or a complaint filed by, Homeland Security. 

Justice Handles U.S. Worker Cases: 

Justice pursues charges filed by U.S. workers who allege that an H-1B 
worker was hired in their place. Such charges may be resolved before an 
administrative law judge, through an out-of-court settlement, or by 
dismissal for lack of reasonable cause to believe that a violation 
occurred. From 2000 through 2005, no cases were heard by an 
administrative law judge. Most of the 101 investigations started by 
Justice from 2000 through 2005 were found to be incomplete, withdrawn, 
untimely, dismissed, or investigated without finding reasonable cause 
for a violation. Of the 97 investigations closed, Justice found 
discriminatory conduct in 6 cases, and assessed $7,200 in penalties in 
3 of the 6 cases, all in 2003.[Footnote 11] 

Conclusion and Recommendations: 

We found that Labor--in coordination with Homeland Security--could 
provide better oversight of employers' compliance with H-1B visa 
program requirements. Even though Labor's authority to review 
applications is limited, it is certifying some applications that do not 
meet program requirements or have inaccurate information. Additionally, 
USCIS may find information in the materials submitted by an H-1B 
employer that indicates the employer is not complying with the program 
requirements. However, these employers may not face consequences 
because USCIS does not have a formal mechanism for reporting this 
information to Labor, and current law restricts Labor from using such 
evidence to initiate an investigation. USCIS also has an opportunity to 
improve its oversight by matching information from its petition 
database with Labor's application case number to detect whether 
employers are requesting more H-1B workers than they were originally 
certified to hire. As Congress deliberates changes to U.S. immigration 
policy, it is essential to ensure that employers comply with program 
requirements designed to protect both domestic and H-1B workers. 

To increase employer compliance with the H-1B program and protect the 
rights of U.S. and H-1B workers, Congress should consider the following 
two actions: 

Eliminate the restrictions on Labor using petition information 
submitted by employers to Homeland Security as the basis for initiating 
an investigation, and: 

Direct Homeland Security to provide Labor with information received 
during the adjudication process that may indicate whether an employer 
is fulfilling its H-1B responsibilities. 

Further, we recommend that Labor strengthen its oversight of employers' 
applications to hire H-1B workers by improving its procedures for 
checking for completeness and obvious inaccuracies, including 
developing more stringent, cost-effective methods of checking for wage 
inaccuracies and invalid employer identification numbers. We also 
recommend that USCIS ensure employers' compliance with the program 
requirements by including Labor's application case number in its new 
information technology system, so that adjudicators are able to quickly 
and independently ensure that employers are not requesting more H-1B 
workers than were originally approved on their application to Labor. 

We provided a draft of our report to the Departments of Labor, Homeland 
Security, and Justice for their review and comments. Each agency 
provided technical comments, which we incorporated as appropriate. 
Justice did not have formal comments on our report. 

Homeland Security agreed with our recommendations, and stated that 
USCIS intends to include Labor's application case number in its new 
information technology system. 

Labor questioned whether our recommendation for more stringent 
application review measures is supported by the low error rate that we 
found, as well as whether the benefits of instituting such measures 
would equal or exceed the added costs of implementing them. In 
addition, Labor said that Congress intentionally limited the scope of 
Labor's application review in order to place the focus for achieving 
program integrity on USCIS. 

We believe that Labor is at risk of certifying H-1B applications that 
contain more errors than were found in the scope of our review. For 
example, we checked only for employer identification numbers with 
invalid prefix codes, and did not look for other combinations of 
invalid numbers or data. Therefore, we do not know the true magnitude 
of the error rate in the certification process. We continue to believe 
there are cost-effective methods that Labor could use to check the 
applications more stringently that would enhance the integrity of the H-
1B process. 

Mr. Chairman, this concludes my prepared statement. I would be happy to 
respond to any questions you or other Members of the Subcommittee may 
have at this time. 

GAO Contacts and Staff Acknowledgments: 

For information regarding this testimony, please contact Sigurd R. 
Nilsen, Director, Education, Workforce, and Income Security Issues, on 
202-512-7215. Individuals making key contributions to this testimony 
include: Alicia Puente Cackley, Gretta L. Goodwin, Amy J. Anderson, 
Pawnee A. Davis, Sheila McCoy and Rachael C. Valliere. 

[End of section] 

Related GAO Products: 

H-1B Visa Program: Labor Could Improve Its Oversight and Increase 
Information Sharing with Homeland Security. GAO-06-720. Washington, 
D.C.: June 22, 2006. 

Homeland Security: Better Management Practices Could Enhance DHS's 
Ability to Allocate Investigative Resources. GAO-06-462T. Washington, 
D.C.: March 28, 2006. 

Immigration Benefits: Additional Controls and a Sanctions Strategy 
Could Enhance DHS's Ability to Control Benefit Fraud. GAO-06-259. 
Washington, D.C.: March 10, 2006. 

Homeland Security: Visitor and Immigrant Status Program Operating, but 
Management Improvements Are Still Needed. GAO-06-318T. Washington, 
D.C.: January 25, 2006. 

Immigration Benefits: Improvements Needed to Address Backlogs and 
Ensure Quality of Adjudications. GAO-06-20. Washington, D.C.: November 
21, 2005. 

Immigration Enforcement: Weaknesses Hinder Employment Verification and 
Worksite Enforcement Efforts. GAO-05-813. Washington, D.C.: August 31, 
2005. 

Department of Homeland Security, U.S. Citizenship and Immigration 
Services: Allocation of Additional H-1B Visas Created by the H-1B Visa 
Reform Act of 2004. GAO-05-705R. Washington, D.C.: May 18, 2005. 

Homeland Security: Some Progress Made, but Many Challenges Remain on 
U.S. Visitor and Immigrant Status Indicator Technology Program. GAO-05- 
202. Washington, DC: February 23, 2005. 

Alien Registration: Usefulness of a Nonimmigrant Alien Annual Address 
Reporting Requirement Is Questionable. GAO-05-204. Washington, D.C.: 
January 28, 2005. 

Highlights of a GAO Forum: Workforce Challenges and Opportunities For 
the 21st Century: Changing Labor Force Dynamics and the Role of 
Government Policies. GAO-04-845SP. Washington, D.C.: June 1, 2004. 

H-1B Foreign Workers: Better Tracking Needed to Help Determine H-1B 
Program's Effects on U.S. Workforce. GAO-03-883. Washington, D.C.: 
September 10, 2003. 

Information Technology: Homeland Security Needs to Improve Entry Exit 
System Expenditure Planning. GAO-03-563. Washington, D.C.: June 9, 
2003. 

High-Skill Training: Grants from H-1B Visa Fees Meet Specific Workforce 
Needs, but at Varying Skill Levels. GAO-02-881. Washington, D.C.: 
September 20, 2002. 

Immigration Benefits: Several Factors Impede Timeliness of Application 
Processing. GAO-01-488. Washington, D.C.: May 4, 2001. 

H-1B Foreign Workers: Better Controls Needed to Help Employers and 
Protect Workers. GAO/HEHS-00-157. Washington, D.C.: September 7, 2000. 

FOOTNOTES 

[1] H-1B Visa Program: Labor Could Improve Its Oversight and Increase 
Information Sharing with Homeland Security, GAO-06-720.Washington, 
D.C.: June 22, 2006. 

[2] The H-1 non-immigrant category was created under the Immigration 
and Nationality Act of 1952 to assist U.S. employers needing workers 
temporarily. Non-immigrants are foreign nationals who come to the 
United States on a temporary basis and for a specific purpose, such as 
to attain education and work. 

[3] Fashion models of distinguished merit and ability also qualify for 
H-1B visas and do not need to meet the definition of specialty 
occupation. 

[4] However, under AC-21 and the H-1B Visa Reform Act of 2004, some H- 
1B workers--such as those being hired by institutions of higher 
education, nonprofit or government research organizations, or those 
with a master's or higher degree from a U.S. institution--may be exempt 
from the annual cap. 

[5] Employers can submit applications to Labor up to 6 months prior to 
the H-1B worker's intended employment date. 

[6] These additional requirements first applied from January 19, 2001-
-September 30, 2003. However, the provision requiring these 
attestations sunsetted, or expired, and was not reinstituted until 
March 8, 2005. Consequently, from October 1, 2003, to March 7, 2005, H- 
1B dependent employers and willful violator employers were not required 
to make the additional attestations, and, in effect, were able to hire 
H-1B workers even if they displaced U.S. workers and did not make 
efforts to recruit U.S. workers. 

[7] An aggrieved individual can be an H-1B worker, a U.S. worker, or a 
bargaining representative for workers; an aggrieved entity can be 
another federal agency, such as the Department of State, or a 
competitor who is adversely affected by the employer's alleged non- 
compliance with the application. 

[8] As of January 2006, Labor required applications to be submitted 
electronically. Special mail application filing procedures are 
available for employers without Internet access or with physical 
disabilities. 

[9] Prior to the enactment of the H-1B Visa Reform Act of 2004, Labor's 
regulations permitted employers to pay actual wages that were only 95 
percent of the prevailing wage. Our analysis only includes those cases 
where the actual wage rate was less than 95 percent of the prevailing 
wage. 

[10] The employer identification number is used by the Internal Revenue 
Service to identify taxpayers who are required to file business tax 
returns. The number has nine digits and is issued in the XX-XXXXXXX 
format. 

[11] In the three cases where penalties were assessed, employers 
advertised for only H-1B workers for various information technology 
positions. Upon receiving notice of the charges, the employers 
immediately agreed not to post discriminatory advertising in the future 
and to take steps to recruit U.S. workers (as well as permanent and 
temporary residents, refugees, and asylees). In these cases, minimum 
penalties were imposed because there were no identifiable victims and, 
by statute, penalties are capped at $2,200 per violation or individual. 
In the three cases where penalties were not assessed, discrimination 
against U.S. workers appeared to be inadvertent, not intentional.

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