Detailed Information on the
H-1B Work Visa for Specialty Occupations - Labor Condition Application Program Assessment

Implementing new government-wide information technology security standards as appropriate.

Advocating the need for statutory changes that would require employers filing H-1B applications to test the labor market to ensure no U.S. workers are available and willing to fill the position.

Collaborating with the Department of Homeland Security and Department of State in a multi-agency data sharing effort to identify, address, and deter H-1B and other visa fraud.

Developing and applying data validation edits and other logic parameters to improve program integrity in the H-1B processing system.

Revising the current Labor Condition Application submission form to improve information and integrity.

Strengthen the LCA process with anti-fraud protections.

Requiring employers to submit H-1B applications using a web-based Labor Conditions Application system.

Measure: Percent of H-1B labor condition applications (LCAs) processed within seven days of the filing date for which no prevailing wage issues are identified or where there are obvious errors or omissions.

Explanation:The seven-day goal derives from a statutory requirement that permits employers under specific circumstances to temporarily employ foreign workers on a non-immigrant basis in a specialty occupation or as a fashion model of distinguished merit or ability. A specialty occupation requires the theoretical and practical application of a body or specialized knowledge and a bachelor's degree or equivalent in the specific specialty (e.g. Sciences, Medicine and Healthcare, Education, Biotechnology, Business Specialties). The targets associated with this goal remain the same from year to year (100%), and are set at the same level as employer submissions (currently in excess of 400,000 per year).

Measure: Cost per H-1B Labor Condition Application Submitted and Processed

Explanation:Estimates average or unit cost of processing labor condition applications in the H-1B program to a determination (certified or denied). The processing is completed in a highly automated system. Due to the nature of processing, FLC is reviewing the measure to determine if it is the appropriate measure to determine the efficiency of the program. The cost per application is calculated by dividing the costs of operating the FLC H-1B program divided by the number of H-1B applications processed.

Is the program purpose clear?

Explanation: The H-1B category was created by the Immigration and Nationality Act of 1990 (INA) to allow employers to hire foreign workers to fill temporary vacancies in high-skill, "specialty" occupations or for fashion models, subject to statutory and regulatory safeguards to ensure U.S. workers are not displaced and that their rights and working conditions are protected. An employer sponsoring an H-1B worker must file a Labor Condition Application (LCA) with the Department of Labor (DOL) before it can file a non-immigrant visa petition with the Department of Homeland Security (DHS) and before the worker can request a worker visa from the Department of State (DOS). For DOL to approve ("certify") the LCA, an employer must attest, among other things, that the foreign worker will be paid the required wage rate and his/her employment will not adversely affect the working conditions of U.S. workers similarly employed.

Evidence: INA, 8 USC §§1184(c)(1) (whether an alien can be admitted as a nonimmigrant under section H is to be determined by the Secretary of Homeland Security after consultation with appropriate agencies and upon petition of the importing employer; petition must be approved before a visa is granted, and must contain such information as the Secretary prescribes), 1184(i) (admission of nonimmigrants; listing requirements for "specialty occupation"), and 1184(g) (setting H-1B cap, limiting authorized admission to six years); 20 CFR Part 655 Subpart H (DOL implementing regulations); DOL Office of Inspector General (OIG) Repts. 06-03-007-03-321 9/30/2003 and 06-96-002-03-321 5/22/1996 (describing purpose of program, which does not require shortage of U.S. workers for position being filled). Until 9/30/03, companies where H-1B workers already comprised more than a certain number or percent of the workforce were required to attest that they had recruited but not found U.S. workers qualified for the position.

Does the program address a specific and existing problem, interest or need?

Explanation: The H-1B program provides employers a means to fill critical, difficult-to-fill vacancies in specialty areas such as information technology on a temporary basis (in this case, up to six years). Since the 1940s, the U.S. has permitted the temporary entry of foreign workers to address labor shortages in select industries. Supporters say the program helps U.S. companies remain competitive by keeping the right skills in stock. Program statistics evidence its continuing popularity among employers and the broad range of occupations visa holders come to the U.S. to fill. By February 2004, the program had already met its cap of 65,000 visas for the year. DOL certification meets the statutory requirement that DHS consult with appropriate federal agencies before permitting entry by non-immigrants and assures DHS, which by statute cannot approve an H-1B petition unless an employer has first obtained a labor certification, that the employer has agreed to take steps to protect its foreign and U.S. workers.

Evidence: 8 CFR Part 214 (DHS regulations on admission of temporary workers, including H-1B, and DHS review of employer petitions); 20 CFR §655.700 (H-1B cap); USCIS press release 2/17/2004, www.uscis.gov (cap reached). According to DOL, in fiscal year 2003, U.S. employers filed 284,799 LCAs to either initiate H-1B petitions or extend the stay of H-1B workers. General Accounting Office (GAO) Rept. GAO-03-883 9/2003 (DHS data show that, in 2002, H-1B workers were approved to fill positions in more than 100 occupations, 40% of which were in IT). In years past, the Congress has increased the H-1B visa cap in response to industry concerns that labor shortages in high-skill occupations would seriously undermine the global competitiveness of U.S. employers (to 115,000 in 1999, 2000; 195,000 in 2001, 2002, and 2003). The cap reverted to 65,000 in FY 2004.

Is the program designed so that it is not redundant or duplicative of any other Federal, state, local or private effort?

Explanation: The federal government has exclusive authority to regulate immigration. The INA requires that DHS consult with appropriate federal agencies before permitting the entry of non-immigrants seeking "H" visas. The Act exclusively authorizes and directs the Secretary of Labor to review employer applications for certification to employ aliens on high-skill H-1B visas. This program's activities are not duplicated in the state, local, or private sector, although portions of the H-1B labor certification process do require assistance and information from state agencies.

Evidence: U.S. Senate, Committee on the Judiciary, Executive Business Meeting 7/13/2003, Statement of Sen. Jeff Sessions (describing Congress' plenary power over immigration policy); INA, 8 USC §§1184(c)(1) (DHS makes determination, after consultation with appropriate federal agencies and upon petition of the importing employer) and 1182(n) (employer must file labor condition application stating its compliance with program requirements before an alien can be admitted on an H-1B visa; defines Secretary of Labor's authority to review applications and issue certifications).

Is the program design free of major flaws that would limit the program's effectiveness or efficiency?

Explanation: Unlike the Permanent Labor Certification program, wherein DOL has independent authority to review applications, DOL's authority to certify LCAs comes by delegation, by virtue of the INA's consultation requirement for "H" visas. The statute waives a labor market test, does not require submission of supporting documentation by employers, limits DOL's authority to review or question LCAs, and prioritizes the processing efficiency of the program. Evaluators have found some or all of these conditions leave the program vulnerable to fraud or abuse. DOL should reexamine ways to strengthen or streamline the LCA process, including legislative changes to: (1) require employers filing LCAs to test the labor market; (2) raise the standard of review; (3) add an audit function or other anti-fraud protections; or (4) eliminate altogether DOL's H-1B certification role, as some have recommended. DOL should implement new government-wide IT security standards, as appropriate. [Note 1: Subsequent to the completion of this assessment, the Congress made statutory changes to address a number of these findings.]

Evidence: INA, 8 USC §§1184(c)(1), 1184(i), and 1184(g) (all establishing framework for H-1B program); §1182(n) (DOL must review LCAs "only for completeness and obvious inaccuracies" and, if none found, issue certification within seven days of date application was filed); OIG Rept. 06-03-007-03-321 9/30/2003 (H-1B is "rubber stamp" program; INA requires DOL approval if LCA complete, free of obvious errors; more efficient if employers filed directly with DHS; DOL role more meaningful if DOL had "corresponding statutory authority, not currently available, to ensure the integrity of the process, by verifying the accuracy of the information provided on LCAs"; DOL processing system "is designed to certify applications quickly rather than screen out applications that do not meet program requirements") and 06-96-002-03-321 5/22/1996 (attestation-based program does not require employers to submit supporting documents), and Semiann. Rept. to Congress for 10/1/2003 - 3/31/2004 (restating vulnerabilities, making recommendations).

Is the program effectively targeted, so that resources will reach intended beneficiaries and/or otherwise address the program's purpose directly?

Explanation: The H-1B LCA process (that is, the first phase of the H-1B program) is primarily employer-focused, as employers are required by regulation to file LCAs with DOL and are the immediate customers for the certification service DOL provides. The budget for DOL's Employment and Training Administration (ETA) funds activities appropriate for its customer base, the priorities (efficiency) the Congress has set, and the level of review authority the statute defines [see Note 1, above]: (1) web-based and fax filing options, which are available round the clock, and (2) an automated review process that enables DOL to issue a determination on most LCAs the day they are received. DOL has leveraged technology to dramatically reduce processing time for applications (from an average of 20 days in 2001 to less than one day) and burden to the employer, and improve the program's accessibility to users.

Evidence: INA, 8 USC §§1184(c)(1), 1184(i), and 1184(g) (all establishing the framework for the H-1B program); 20 CFR Part 655 Subpart H (DOL implementing regulations); OIG Repts. 06-03-007-03-321 9/30/2003 (description of program; applications are processed within a couple of days when filed by fax or mail, and within minutes when filed electronically; electronic filing avoids backlogs) and 06-96-002-03-321 5/22/1996 (description of program); ETA Congressional Justification submitted to the Congress with FY 2005 President's Budget.

Does the program have a limited number of specific long-term performance measures that focus on outcomes and meaningfully reflect the purpose of the program?

Explanation: Program goals/measures tie to program mission and Department-wide strategic goals. Although both existing goals (a third measure, on efficiency, is under development) relate to outputs, output goals are appropriate to capture the most important aspects of this program; the Congress and other program stakeholders have made expeditious processing a priority for DOL's portion of the program [see Note 1, above], and the authorizing statute requires DOL to process LCAs within seven days, all of which warrants the tracking of output data and processing efficiencies. In addition, a small number of measures is appropriate for DOL's limited role in the broader H-1B program. Since the program already processes applications at such a high rate, a three- to four-year window for performance targets is acceptable; that is, even at maximum performance levels, the processing rate will not be changing significantly over the long term. In 2004, the program revised the targets for its two existing goals to reflect actual processing rates and expectations.

Evidence: One measure tracks processing rates within seven days of filing, a derivative of the INA requirement that LCAs be processed within seven days, if no anomalies are found. See 8 USC §§1182(n)(1)(G) and 1356(s) (seven day processing requirement for H-1B applications). A separate, stricter measure tracks processing rates within two days of filing. DOL is also developing a measure to track the average or unit cost of processing labor certifications ("cost of labor certification processed") in each labor certification program. DOL intends this to be a program-specific efficiency measure. In all, goals tie to the program's mission; ETA's Outcome Goal to Protect Worker Benefits; and DOL's Strategic Goal of A Competitive Workforce. Also see ETA Congressional Justification submitted with FY 2005 President's Budget (goal for FYs 2004 and 2005 is to process LCAs within seven days of the filing date; goal for FY 2003 was to process 95% of LCAs for the H-1B program; baseline is the current processing rate of 99%); and ETA Strategic Plan for FYs 1999-2004.

Does the program have ambitious targets and timeframes for its long-term measures?

Explanation: In fiscal year 2006, ETA's goal is to process 100% of error-free LCAs within seven days of filing, and 98% of error-free electronic applications within one day of filing. The seven day goal is designed to tie directly to the program's statutory mandate. The e-filing target is ambitious, in that it is set at the maximum rate the program can achieve, given current technology and system contingencies. Current measures incorporate program experience and recent performance levels. While as recently as 2001 the program was processing only 56% of LCAs within seven days, improvements providing for electronic and fax-in filing dramatically increased processing times; in 2003, the program processed 99% of LCAs within seven days. For each goal, targets remain the same from year to year, which the program believes is appropriate to keep standards and performance expectations high.

Evidence: ETA, Workforce System Results 10/1/2003 - 12/31/2003, www.doleta.gov/Performance/results/ Edition_7_12_31-03.pdf (2003 goal was to process 95% of H-1B LCAs within seven days; actual was 99%; "goals are usually set to be 'ambitious' in the context of prior performance"; goals are nationwide goals and may not apply to individual states), and ETA Congressional Justification submitted with FY 2005 President's Budget.

Does the program have a limited number of specific annual performance measures that can demonstrate progress toward achieving the program's long-term goals?

Explanation: As discussed above, a small number of output goals (100% of clean applications processed within seven days, and 98% of clean electronic applications filed within one day) is appropriate for DOL's clear, limited role under the H-1B statute, and the priority the statute and the program's major stakeholders (including the Congress and employers who file individual applications) assign to the program's processing efficiency. [See Note 1, above.] In addition, ETA is developing an efficiency measure to help it track and manage labor certification costs in the long term.

Evidence: The seven-day processing goal is consistent with the minimum processing rate the statute sets for each calendar year. 8 USC §§1182(n)(1)(G) and 1356(s) (seven day processing requirement for H-1B applications). In 2003, GAO found that one of employers' primary concerns with the H-1B program as a whole (not just the labor certification portion) was the length of the review at each stage of the process. GAO Rept. GAO-03-883 9/2003. Also see ETA Congressional Justification submitted with FY 2005 President's Budget.

Does the program have baselines and ambitious targets for its annual measures?

Explanation: As mentioned above, program measures reflect program experience and expectations that the program will continue to perform well. While the program already performs at a high level of efficiency, sustained effort goes into the improvement of H-1B processing and review. For LCAs submitted electronically via DOL's web site, a response can be expected in many cases within the same day or, in the case of a question regarding the prevailing wage source, the next working day. For LCAs submitted by facsimile, the response can be expected within two working days. DOL tracks output data, establishes baselines, and continues to look for additional efficiencies in the process.

Evidence: ETA, Workforce System Results 10/1/2003 - 12/31/2003, www.doleta.gov/Performance/results/ Edition_7_12_31-03.pdf (2003 goal was to process 95% of H-1B LCAs within seven days; actual was 99%; goals are nationwide goals and may not apply to individual states), and ETA Congressional Justification submitted with FY 2005 President's Budget.

Do all partners (including grantees, sub-grantees, contractors, cost-sharing partners, and other government partners) commit to and work toward the annual and/or long-term goals of the program?

Explanation: State labor agencies are federally funded to provide employers filing H-1B applications with determinations of the prevailing wage rate appropriate to the job classification that is the subject of the application. DOL's planning guidance to states and DOL regional offices includes standards for state administration of these activities, including productivity rates.

Evidence: See, for example, ETA Field Memorandum No. 9-04, Role of State Agencies for Foreign Labor Certification in FY 2004 (3/31/2004), providing States with "guidance for the funding and management of [ ] annual grant allocation for the Alien Labor Certification Program".

Are independent evaluations of sufficient scope and quality conducted on a regular basis or as needed to support program improvements and evaluate effectiveness and relevance to the problem, interest, or need?

Explanation: For years, labor certification activities have been under scrutiny by DOL's Office of Inspector General (which, in addition to its two audits of DOL's labor certification programs, investigates and prosecutes fraud in these programs on a regular basis) and the General Accounting Office. Both agencies have reviewed and continue to monitor the H-1B and other labor certification programs, which they see as seriously challenged. For example: (1) every OIG Semiannual Report to Congress since at least 1996 has either critiqued DOL's labor certification programs or recounted fraud prosecutions arising from those programs during the six months covered by the report; (2) the OIG formally reviewed DOL's labor certification programs in 2003 and, previously, in 1996; and (3) in 2003, the General Accounting Office completed a review of the broader H-1B program (primarily DOL and DHS portions) after its last review in 2000.

Evidence: See, for example, OIG, www.oig.dol.gov, Semiannual Repts. to Congress for 10/1/2003 - 3/31/2004, 4/1/2003 - 9/30/2003, 10/1/2002 - 3/31/2003, 4/1/2002 - 9/30/2002, 10/1/2001 - 3/31/2002, 4/1/2001 - 9/30/2001, 10/1/2000 - 3/31/2001, 4/1/2000 - 9/30/2000, 10/1/1999 - 3/31/2000, 4/1/1999 - 9/30/1999, 10/1/1998 - 3/31/1999, 4/1/1998 - 9/30/1998, 10/1/1997 - 3/31/1998, and 4/1/1996 - 9/30/1996; OIG, Top Mgmt. Issues at Dept. of Labor 1/2004 (also included in DOL FY 2003 Annual Report); OIG Repts. 06-03-007-03-321 9/30/2003 and 06-96-002-03-321 5/22/1996; and GAO, www.gao.gov, Repts. GAO-03-883 9/2003 and GAO/HEHS-00-157 9/2000. In addition, over the years, a large number of law review articles and academic studies have analyzed and/or critiqued the program.

Are Budget requests explicitly tied to accomplishment of the annual and long-term performance goals, and are the resource needs presented in a complete and transparent manner in the program's budget?

Explanation: Like the rest of DOL, ETA does not have an integrated accounting and performance management system to identify the full cost of achieving this program's performance goals and support day-to-day operations.

Evidence: ETA Congressional Justification submitted with FY 2005 President's Budget; DOL Strategic Plan for FYs 2003-2008, www.dol.gov/_sec/stratplan/strat_plan_2003-2008.htm (describing DOL's budget/ performance integration efforts).

Has the program taken meaningful steps to correct its strategic planning deficiencies?

Explanation: The Department's budget/performance integration effort includes a "full cost accounting" initiative that reaches into each DOL agency, and DOL's FY 2005 budget submission moved closer to fully integrating performance goals with budget information. The program is developing an unit cost measure (cost per labor certification in each ETA foreign labor program), to be implemented in FY 2005, to strengthen cost analysis, planning, and ultimately performance. The program also monitors output data and feedback from employers to identify program weaknesses and improve strategic planning. In 2004, the program revised targets for its performance measures to more accurately reflect current performance levels and the program's long-term vision.

Evidence: ETA Congressional Justification submitted with President's Budget for FYs 2004 and 2005; DOL Strategic Plan for FYs 2003-2008, www.dol.gov/_sec/stratplan/strat_plan_2003-2008.htm (describing DOL's budget/ performance integration efforts).

Does the agency regularly collect timely and credible performance information, including information from key program partners, and use it to manage the program and improve performance?

Explanation: ETA collects and uses information from numerous sources to evaluate and improve program management, including reports from state and regional offices, caseload data from the LCA online and fax-in application systems, feedback from employers and other stakeholders, and findings from OIG and external program evaluations. For example, under DOL's Labor Exchange Performance Measurement System, States regularly report on the progress and success of comprehensive "labor exchange services" that include job referrals to employers, and assistance to employers in the crafting and analysis of hard-to-fill job orders. States report financial data on a quarterly basis using ETA's web-based Enterprise Information Management System (EIMS). On another front, feedback from employers and others led to the development -- and to the continuing enhancement and improvement -- of the H-1B web-based and fax-in application systems.

Evidence: See, for example, ETA Field Memorandum No. 9-04, Role of State Agencies for Foreign Labor Certification in FY 2004 (3/31/2004) (planning and reporting requirements for States applying for and receiving grants to support labor certification activities); information of labor exchange programs, www.doleta.gov/ programs/adult_program.cfm#le (the Workforce Investment Act of 1998 requires greater accountability for States in the delivery of employment services required by the Wagner-Peyser Act of 1933); and quarterly reports generated by ETA's web-based EIMS financial system, on which States enter data on spending that uses grant funds and is related to labor certification activities, among other categories.

Are Federal managers and program partners (including grantees, sub-grantees, contractors, cost-sharing partners, and other government partners) held accountable for cost, schedule and performance results?

Explanation: DOL ties processing-time requirements to performance appraisals for ETA managers and staff. In addition, State Workforce Agencies (SWAs) are funded to provide prevailing wage information to employers filing H-1B applications, and are held accountable for both the timeliness of their responses and the cost of this activity.

Evidence: DOL's revised performance management plans for senior executives (Form DL 1-2059, Rev. 10/2001) and for supervisors and managers (Form DL 1-382, Rev. 10/2001); Field Memorandum No. 9-04: 'Role of State Agencies for Foreign Labor Certification in FY 2004.' DOL annually awards grants to fund State activities related to labor certification, including the provision of prevailing wage determinations. Once the appropriation is known, ETA issues guidance to SWAs regarding their role in foreign labor certification. The SWAs, in turn, submit their annual plans to the ETA Regional Offices under the Wagner-Peyser annual funding agreement. The Regional Offices are responsible for approving the annual plans, reviewing / approving incoming quarterly expenditure reports, and reconciling State financial data at end of year.

Are funds (Federal and partners') obligated in a timely manner and spent for the intended purpose?

Explanation: Salaries and expenses funding is obligated in a timely manner, according to the ETA spending plan.

Evidence: See Field Memorandum No. 9-04: 'Role of State Agencies for Foreign Labor Certification in FY 2004' and State Annual Plans, and quarterly reports generated by ETA's web-based EIMS financial system.

Does the program have procedures (e.g. competitive sourcing/cost comparisons, IT improvements, appropriate incentives) to measure and achieve efficiencies and cost effectiveness in program execution?

Explanation: ETA is developing an efficiency measure to help its labor certification programs evaluate costs and cost effectiveness. In recent years, the H-1B program has leveraged Information Technology to significantly increase processing rates. The program is examining additional changes to promote efficiency, including the centralization of H-1B processing activities and the conversion to 100% electronic filing.

Evidence: In addition to being mailed, LCA's may be filed electronically or by fax. See, for example, ETA's Foreign Labor Certification LCA Online System, www.lca.doleta.gov, and instructions for fax-in filing, www.ows.doleta.gov/foreign/faqsanswers.asp#h1b2. Electronic processing is highly efficient but, as mentioned in other parts of this assessment, raises questions about what technological or programmatic safeguards may be needed to meet security needs and protect against fraud.

Does the program collaborate and coordinate effectively with related programs?

Explanation: DOL collaborates with other federal agencies (e.g., DHS, DOS, and DOL's own OIG) on major policy, program, or process issues related to foreign labor certification. For example, ETA has an ongoing, structured (quarterly meetings) dialogue with DHS and DOS on ways to reduce fraud in these programs. An ETA-DHS subgroup meets monthly to confer and strategize about fraud investigations in progress. The program staff also collaborates closely with States on wage determination activities.

Evidence: See, for example, Field Memorandum No. 9-04: 'Role of State Agencies for Foreign Labor Certification in FY 2004'.

Does the program use strong financial management practices?

Explanation: The program follows established Department-wide and ETA practices and is free of material internal control weaknesses as identified by auditors.

Evidence: DOL FY 2003 Annual Report on Performance and Accountability, www.dol.gov/dol/aboutdol/main.htm.

Has the program taken meaningful steps to address its management deficiencies?

Explanation: DOL has tied its performance goals to performance ratings for managers. As stated above, as a result of the web-based application option initiated in January 2002, and improvements to the fax-in application system made in 2001, ETA has improved seven-day processing from 56% of error-free applications to 99%. Since 1997, ETA has also addressed deficiencies in the quality of prevailing wage data provided to employers applying for H-1B and other labor certification programs. Today, the Bureau of Labor Statistics' (BLS) Occupational Employment Statistics wage data is used by all State and Regional Offices to make prevailing wage determinations for the program. As stated above, however, ETA must explore additional ways to strengthen protections for program users (employers, visa holders) and indirect beneficiaries (like U.S. workers). [See Note 1, above.]

Evidence: DOL's revised performance management plans for senior executives (Form DL 1-2059, Rev. 10/2001) and for supervisors and managers (Form DL 1-382, Rev. 10/2001); ETA's Foreign Labor Certification LCA Online System, www.lca.doleta.gov, and instructions for fax-in filing, http://www.ows.doleta. gov/foreign/faqsanswers.asp#h1b2; and General Administration Letters No. 02-98 'Prevailing Wage Policy for Nonagricultural Immigration Programs,' http://workforcesecurity.doleta.gov/dmstree/gal/gal98/gal_02-98.htm, and No. 02-99 'Availability and Use of Occupational Employment Statistics Survey Data for Alien Labor Certification Prevailing Wage Purposes,' http://workforcesecurity.doleta.gov/ dmstree/gal/gal99/gal_02-99.htm. Current prevailing wage data are available on ETA's Online Wage Library at http://www.flcdatacenter.com/ owl.asp.

Has the program demonstrated adequate progress in achieving its long-term performance goals?

Explanation: Previous processing goals were consistently met and/or exceeded. In 2004, the program revised its targets to more accurately reflect program experience, current performance levels, and long-term expectations. The program is currently processing 99% of the LCAs within the seven day time frame and, 98% of total applications are processed within two working days of filing. ETA's performance data shows the program has maintained a high level of efficiency since electronic processing was instituted in 2002. In addition, as stated above, ETA is exploring options for additional efficiencies and cost effectiveness, including the centralization of H-1B processing, and is developing an efficiency measure ("cost per certification processed"), both of which could strengthen long-term performance.

Evidence: Workforce System Results 10/1/2003 - 12/31/2003, www.doleta.gov/Performance/results/ Edition_7_ 12_31-03.pdf (2003 goal was to process 95% of H-1B LCAs within seven days; actual was 99%).

Does the program (including program partners) achieve its annual performance goals?

Explanation: Previous processing goals were consistently met and/or exceeded. In FY 2003, ETA processed 284,799 H-1B labor condition applications. Of those, 99% were processed within the seven-day statutory deadlline, and 98% of e-filed applications were processed within two days. This significantly exceeded the annual goal of 95%. In 2004, the program revised its targets to more accurately reflect program experience, current performance levels, and long-term expectations.

Evidence: Workforce System Results 10/1/2003 - 12/31/2003, www.doleta.gov/Performance/results/ Edition_7_ 12_31-03.pdf (2003 goal was to process 95% of H-1B LCAs within seven days; actual was 99%).

Does the program demonstrate improved efficiencies or cost effectiveness in achieving program goals each year?

Explanation: Although the program exhibits a consistently high level of efficiency, it cannot measure the cost effectiveness of its activities or track unit cost fluctuations from year to year. The program should evaluate whether it can achieve additional efficiencies by -- for example -- centralizing operations (currently under consideration), reducing the number of workers or work hours dedicated to H-1B activities, or restructuring the services provided by (or the current expectations for) contractors. It is worth noting that the program has made clear, qualitative progress in recent years leading to demonstrable efficiencies, including (as stated above): (1) web-based and fax filing options, which are available round the clock, and (2) an automated review process that enables DOL to issue a determination on most LCAs the day they are received. In addition, as part of its managerial cost accounting effort, ETA is developing a 'cost per certification processed' measure for its Foreign Labor Certification program, which includes H-1B.

Evidence: OIG Repts. 06-03-007-03-321 9/30/2003 (LCAs processed within a couple of days when filed by fax or mail, and within minutes when filed electronically; electronic filing avoids backlogs); ETA Interim Final Rule, 66 Fed.Reg. 63298 12/5/2001 (implementing electronic filing for H-1B labor condition applications); Workforce System Results 10/1/2003 - 12/31/2003, www.doleta.gov/Performance/results/ Edition_7_12_31-03.pdf (2003 goal exceeded). According to ETA's website, ows.doleta.gov/ foreign/times.asp: "For LCAs electronically filed on [the ETA] website, a response can be expected in minutes or, in the case of a question regarding the prevailing wage source, the next working day. [] For LCAs submitted by facsimile, the response can be expected within two workdays."

Does the performance of this program compare favorably to other programs, including government, private, etc., with similar purpose and goals?

Explanation: The H-1B LCA program compares favorably to other certification programs for temporary foreign workers, though each program serves employers' need for a different set of skills and occupations. For example, the program is more efficient than some of its counterparts, like the H-2B temporary program for nonagricultural workers. In fact, the H-1B attestation-based application model is a key component of the regulatory proposal to reengineer the Permanent Labor Certification program. Part of the intent of these reengineering efforts is to capture efficiencies seen in the H-1B certification process. However: (1) no evaluation has compared the H-1B to similar programs, per se; program reviews such as those by the DOL OIG may address several labor certification programs and the same time, but do not technically compare programs to one another, and (2) evaluations (such as those by the OIG) of individual labor certification programs conducted during the same time period have consistently found they all exhibit weaknesses that make them vulnerable to fraud and abuse.

Evidence: See 67 Fed.Reg. 30466 5/6/2002 (ETA rule proposing reforms to the Permanent Labor Certification program). See also, for example, H.R. 3604, 108th Congress (proposing to convert H-2A temporary worker program to an attestation-based model similar to H-1B, authorizing DOL review "only for completeness and obvious inaccuracies", and if none are found, requiring issuance of a certification within seven days of the date the application was filed).

Do independent evaluations of sufficient scope and quality indicate that the program is effective and achieving results?

Explanation: Recent program reviews by GAO and DOL's Office of Inspector General reiterate their previous concerns over DOL's portion of the H-1B program -- for example, that DOL may not have sufficient authority to effectively detect or deter fraud, or that its role is perfunctory at best and could or should be eliminated. These evaluations do not look strictly at the positive results the labor certification program achieves within DOL's existing authority -- results discussed above -- but also generally examine the implications that current policy and program dynamics have for the long-term performance of the broader H-1B program. There is merit in the OIG's finding, for example, that DOL's role may add little to the H-1B certification process. DOL should explore the various options listed in previous pages of this assessment (enhancement of review authority, elimination of DOL's role in certification, addition of an audit function or a stronger market test, etc.), as it considers how to improve program performance and ensure effective resource allocation in the long run. [See Note 1, above.]

Evidence: OIG, www.oig.dol.gov, Semiannual Repts. to Congress for 10/1/2003 - 3/31/2004 (restating vulnerabilities of foreign labor certification programs; making recommendations) and 4/1/2003 - 9/30/2003 (ETA role adds little value to process of protecting U.S. jobs, wages), Top Mgmt. Issues at Dept. of Labor 1/2004 (fraud in certification programs), Repts. 06-03-007-03-321 9/30/2003 and 06-96-002-03-321 5/22/1996 (citing employer noncompliance with program requirements; recommending LCA program be eliminated or, if redesigned, that DOL be authorized to charge user fee); and GAO, www.gao.gov, Repts. GAO-03-883 9/2003 (difficulties of tracking H-1B visa holders; citing program abuses and DOL's limited investigative authority, post-certification; restating 2000 finding that, due to legal limitations, DOL review is "perfunctory", "adds little assurance that labor conditions employers attest to actually exist"; recommending additional enforcement authority for DOL) and GAO/HEHS-00-157 9/2000.