The INS Lacks Resources to Review H1-B Petitions According to US Office and Management and Budget

ByPrimary Researcher

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Executive Summary

  • The INS is responsible for reviewing the petitions for H1-B visas.
  • According to the OMB, the INS lacks the resources to review the petitions for accuracy or fraud.

Introduction

The Office of Management and Budget has evaluated the involvement of the INS in the H1-B program and found them to be unable to perform their duty as part of this program.

Evidenced for the actual amount of displacement found by the following quotation.

INS is responsible for ensuring that H-1B positions are in fact specialty occupations and that workers granted entry are qualified for those positions. Until recently, INS had no national systematic approach for adjudicators to follow to ensure the consistent review of employer petitions. Further, INS staff conducting these reviews continue to lack easy access to specific, case-related information that would help them assess the merit of employers’ requests, which can also lead to inconsistent or incorrect approvals of requests.


In addition to eliminating potential program noncompliance or fraud, INS’ review of petitions needs to be effective for several other reasons. First, INS typically does not verify whether the workers it approves actually work in the jobs for which it approved the petitions and, according to INS officials, detection of visa fraud after petitions have been approved is not an investigative priority because limited special agent resources are, of necessity, primarily devoted to criminal activities. Second, the State Department’s consular offices are generally required to interview each applicant, but can waive this requirement when the consular office is satisfied (based on a review of the application) that the applicant qualifies for a visa.

It relies on INS to ensure that petition information related to U.S. employers is correct. One State Department foreign officer said he assumes that Labor and INS, respectively, have satisfied themselves on these issues before approving the LCAs and petitions.

Third, we believe that because the number of visas that may be issued for H-1B workers each year is limited, there should be procedures in place to ensure that these visas are granted judiciously and correctly so that those eligible for the program have access to the limited visas.

As a result of this decision, at one service center we found petitions waiting in a file room for 2 months or more before being distributed to adjudicators for review. Moreover, we found in April 2000 that the four centers were exceeding the 60-day time frame, taking anywhere from 45 to 70 days to start reviewing petitions. According to INS headquarters officials, however, as of August 2000, the service centers were generally taking 60 days or less to process petitions.- University of Michigan Journal of Law Reform 

The INS is simply a rubber stamp on H1-B visa petitions. Due to a lack of resources allocated to the INS, the INS simply assumes that the story told to the government in the H1-B petition is true.

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Conclusion

This OMB study was performed all the way back in 1999. And since that time, the H1-B program has been steadily increasing in size, while the INS budget has not increased correspondingly. This means that more likely than not, the shortcomings pointed out by OMB are even worse in 2020.

References

https://www.gao.gov/new.items/he00157.pdf