Rep. Smith Urges INS To Fight H-1B Visa Fraud
(May 28, 1999) Rep. Lamar Smith, the Chairman of the House Immigration and Claims Subcommittee wrote INS Commissioner Doris Meissner on May 26 about H-1B visas being obtained fraudulently, thereby disadvantaging employers who use these visas legitimately. Late last year Congress expanded the annual cap on H-1B visas because of a shortage of high-tech professionals in the computer industry.
Computer industry executives lobbied and testified before committees that there is a severe shortage of high-tech workers which is threatening the industry. The bill increased the number of H1B temporary worker visas from 65,000 to 115,000 in 1999, 115,000 in 2000 and 107,500 in 2001. The visa limit will return to 65,000 in 2002.
Now, Rep. Lamar Smith (R-TX) is concerned that many of these visas are going to unqualified applicants who receive their H-1B visas fraudulently.
The House Judiciary Committee's Subcommittee on Immigration and Claims, which is chaired by Rep. Smith, held a hearing on May 5 on this topic. Witnesses testified that fraud by both visa recipients and corporate sponsors is rampant, that government agencies do not have the resources to deal with the problem, and the recipients of fraudulently obtained visas are rarely prosecuted or deported.
Rep. Smith wrote in a two page letter (see below) to Doris Meissner that "with four months remaining in the current fiscal year, the pool of available visas under the H-1B program is nearing exhaustion despite the fact that Congress last year raised the annual cap on H-1B visas from 65,000 to 115,000. I am concerned that many H-1B visa numbers are being obtained on the basis of fraudulent applications, thereby disadvantaging employers who use these visas legitimately."
Rep. Smith also wrote that "greater emphasis must be placed on the detection and elimination of fraud." He urged the INS to take several types of action. He wrote that the INS should "Investigate all questionable applications before a petition is approved." He also suggested that "Only large, well-established companies with a proven track record should receive routine approvals."
He also urged the INS to take action against fraudulent companies and individuals, including referring cases to the U.S. Attorney for criminal prosecution, and deporting individuals who fraudulently obtain H-1B visas.
Allen Kay, Communications Director for Rep. Lamar Smith, told Tech Law Journal that Rep. Smith has no plans to introduce any H1B related legislation at this time. "He is just focusing on getting the INS to use their existing laws and tools to do this." He is "not anticipating any new laws."
The Clinton administration opposed H1B legislation, but relented late in the 105th Congress. Asked if part of the problem is that the Clinton administration is not now interested in enforcing the act, Allen Kay responded that "Chairman Smith has not made that accusation." However, "I think the jury is still out," said Kay.
|Senate Holds H1B
Visa Hearing, 2/25/98.
Sen. Abraham Introduces H1B Bill, 3/7/98.
GAO Questions IT Worker Shortage, 3/25/98.
Kennedy/Feinstein Introduce H1B Bill, 3/27/98.
Bills: Abraham v. Kennedy/Feinstein, 3/30/98.
H1B Bill Passes Senate Committee, 4/2/98.
H1B Bills Advance in Congress, 5/21/98.
Congressional Leaders Reach Agreement, 7/25/98.
H1B Visa Bills Stall In Congress, 8/12/98.
Gov. Wilson Tells Clinton to Sign H1B Bill, 8/26/98.
House Passes H1B Bill, 9/24/98.
H1B Bill Attached to Appropriations Bill, 10/13/99.
House Subcommittee Hearing on H1B Fraud, 5/6/99.
|Letter from Rep. Lamar Smith.
To: INS Commissioner Doris Meissner.
Re: H-1B Visa Fraud.
Date: May 26, 1999.
Source: Office of Rep. Lamar Smith. The letterhead is not reproduced here.
May 26, 1999
The Honorable Doris Meissner
Dear Commissioner Meissner:
I understand that with four months remaining in the current fiscal year, the pool of available visas under the H-1B program is nearing exhaustion despite the fact that Congress last year raised the annual cap on H-1B visas from 65,000 to 115,000. I am concerned that many H-1B visa numbers are being obtained on the basis of fraudulent applications, thereby disadvantaging employers who use these visas legitimately.
Testimony at a May 5 hearing on Visa Fraud before the Subcommittee on Immigration and Claims clearly established that pervasive fraud in the H-1B program has had a major impact on the availability of the numerically limited visas. Witnesses from the INS and Department of State described a recent investigation by the U.S. Consulate at Chennai, India of 3,247 H-1B petitions. The results were staggering - 45% of the cases could not be authenticated and 21% were identified as outright fraudulent. Chennai issued more than 15,000 H-1B visas in fiscal year 1998. A significant portion of those visas may have been issued on basis of fraudulent or unverifiable documentation.
Non-government witnesses who testified at the May 5 hearing, including a representative of large corporations that rely on the H-1B program to obtain key personnel and two immigration attorneys, agreed that fraud is a serious problem in the H-1B program. They expressed concern that the large number of fraudulent petitions severely reduces the number of visas available to legitimate employers.
While the INS service centers and Department of State consular officers have had some notable successes in the battle against fraud in the H-1B program, much more needs to be done. In particular, INS management should provide more active leadership and greater support to field officers who are working to expose fraud. At the May 5 hearing, I was astounded when [begin page 2] William R.Yates, Acting Deputy Associate Commissioner of the Immigration Services Division, said that even when fraud scams are exposed, those who have benefited from the fraud are not placed in removal proceedings. Failure to take action to deport aliens in such cases will only encourage more fraud. It also very damaging to the morale of personnel at the INS and Department of State who have spent time and resources investigating these fraud schemes. Why should they even bother if the INS is not going to take appropriate action under the law?
To preserve the maximum number of H-1B visas for use by legitimate employers, greater emphasis must be placed on the detection and elimination of fraud. I urge that you take action to ensure that the following procedures are implemented at all four INS service centers:
I would appreciate your urgent attention to the above recommendations so as to free up the maximum number of H-1B visas for use under the cap during the current fiscal year.