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Title I — H–1B visa fraud and abuse protections

S. 600 · 113th Congress · Mar 18, 2013 · Lineage

I H–1B visa fraud and abuse protections

A H–1B employer application requirements

Sec. 101 Modification of application requirements

(a)
General application requirements— Subparagraph (A) of section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is amended to read as follows:

“(A) The employer—

“(i) is offering and will offer to H–1B nonimmigrants, during the period of authorized employment for each H–1B nonimmigrant, wages that are determined based on the best information available at the time the application is filed and which are not less than the highest of—

“(I) the locally determined prevailing wage level for the occupational classification in the area of employment;

“(II) the median average wage for all workers in the occupational classification in the area of employment; and

“(III) the median wage for skill level 2 in the occupational classification found in the most recent Occupational Employment Statistics survey; and

“(ii) will provide working conditions for such H–1B nonimmigrant that will not adversely affect the working conditions of other workers similarly employed.”

(b)
Internet posting requirement— Subparagraph (C) of such section 212(n)(1) is amended—
(1)
by redesignating clause (ii) as subclause (II);
(2)
by striking “(i) has provided” and inserting the following:

“(ii)

“(I) has provided”

(3)
by inserting before clause (ii), as redesignated by paragraph (2) of this subsection, the following:

“(i) has posted on the Internet website described in paragraph (3), for at least 30 calendar days, a detailed description of each position for which a nonimmigrant is sought that includes a description of—

“(I) the wages and other terms and conditions of employment;

“(II) the minimum education, training, experience, and other requirements for the position; and

“(III) the process for applying for the position; and”

(c)
Wage determination information— Subparagraph (D) of such section 212(n)(1) is amended by inserting “the wage determination methodology used under subparagraph (A)(i),” after “shall contain”.
(d)
Application of requirements to all employers—
(1)
Nondisplacement— Subparagraph (E) of such section 212(n)(1) is amended—
(A)
in clause (i)—
(i)
by striking “90 days” both places it appears and inserting “180 days”; and
(ii)
by striking “(i) In the case of an application described in clause (ii), the” and inserting “The”; and
(B)
by striking clause (ii).
(2)
Recruitment— Subparagraph (G)(i) of such section 212(n)(1) is amended by striking “In the case of an application described in subparagraph (E)(ii), subject” and inserting “Subject”.
(e)
Requirement for waiver— Subparagraph (F) of such section 212(n)(1) is amended to read as follows:

“(F) The employer shall not place, outsource, lease, or otherwise contract for the services or placement of H–1B nonimmigrants with another employer unless the employer of the alien has been granted a waiver under paragraph (2)(E).”

Sec. 102 New application requirements

Section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is amended by inserting after clause (ii) of subparagraph (G) the following:

“(H)

“(i) The employer has not advertised any available position specified in the application in an advertisement that states or indicates that—

“(I) such position is only available to an individual who is or will be an H–1B nonimmigrant; or

“(II) an individual who is or will be an H–1B nonimmigrant shall receive priority or a preference in the hiring process for such position.

“(ii) The employer has not solely recruited individuals who are or who will be H–1B nonimmigrants to fill such position.

“(I) If the employer employs 50 or more employees in the United States, the sum of the number of such employees who are H–1B nonimmigrants plus the number of such employees who are nonimmigrants described in section 101(a)(15)(L) may not exceed 50 percent of the total number of employees.

“(J) If the employer, in such previous period as the Secretary shall specify, employed 1 or more H–1B nonimmigrants, the employer shall submit to the Secretary the Internal Revenue Service Form W–2 Wage and Tax Statement filed by the employer with respect to the H–1B nonimmigrants for such period.”

Sec. 103 Application review requirements

(a)
Technical amendment— Section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)), as amended by section 102, is further amended in the undesignated paragraph at the end, by striking “The employer” and inserting the following:

“(K) The employer.”

(b)
Application review requirements— Subparagraph (K) of such section 212(n)(1), as designated by subsection (a), is amended—
(1)
by inserting “and through the Department of Labor’s website, without charge.” after “D.C.”;
(2)
by striking “only for completeness” and inserting “for completeness and clear indicators of fraud or misrepresentation of material fact,”;
(3)
by striking “or obviously inaccurate” and inserting “, presents clear indicators of fraud or misrepresentation of material fact, or is obviously inaccurate”;
(4)
by striking “within 7 days of” and inserting “not later than 14 days after”; and
(5)
by adding at the end the following: “If the Secretary’s review of an application identifies clear indicators of fraud or misrepresentation of material fact, the Secretary may conduct an investigation and hearing in accordance with paragraph (2).”.

B Investigation and disposition of complaints against H–1B employers

Sec. 111 General modification of procedures for investigation and disposition

Subparagraph (A) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended—
(1)
by striking “(A) Subject” and inserting “(A)(i) Subject”;
(2)
by striking “12 months” and inserting “24 months”;
(3)
by striking the last sentence; and
(4)
by adding at the end the following:

“(ii)

“(I) Upon the receipt of such a complaint, the Secretary may initiate an investigation to determine if such a failure or misrepresentation has occurred.

“(II) The Secretary may conduct surveys of the degree to which employers comply with the requirements of this subsection and may conduct annual compliance audits of employers that employ H–1B nonimmigrants.

“(III) The Secretary shall—

“(aa) conduct annual compliance audits of not less than 1 percent of the employers that employ H–1B nonimmigrants during the applicable calendar year;

“(bb) conduct annual compliance audits of each employer with more than 100 employees who work in the United States if more than 15 percent of such employees are H–1B nonimmigrants; and

“(cc) make available to the public an executive summary or report describing the general findings of the audits carried out pursuant to this subclause.”

Sec. 112 Investigation, working conditions, and penalties

Subparagraph (C) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended—
(1)
in clause (i)—
(A)
in the matter preceding subclause (I)—
(i)
by striking “a condition of paragraph (1)(B), (1)(E), or (1)(F)” and inserting “a condition under subparagraph (A), (B), (C)(i), (E), (F), (G)(i)(I), (H), (I), or (J) of paragraph (1)”; and
(ii)
by striking “(1)(C)” and inserting “(1)(C)(ii)”; and
(B)
in subclause (I)—
(i)
by striking “$1,000” and inserting “$2,000”; and
(ii)
by striking “and” at the end;
(C)
in subclause (II), by striking the period at the end and inserting a semicolon and “and”; and
(D)
by adding at the end the following:

“(III) an employer that violates such subparagraph (A) shall be liable to the employees harmed by such violations for lost wages and benefits.”

(2)
in clause (ii)—
(A)
in subclause (I)—
(i)
by striking “may” and inserting “shall”; and
(ii)
by striking “$5,000” and inserting “$10,000”; and
(B)
in subclause (II), by striking the period at the end and inserting a semicolon and “and”; and
(C)
by adding at the end the following:

“(III) an employer that violates such subparagraph (A) shall be liable to the employees harmed by such violations for lost wages and benefits.”

(3)
in clause (iii)—
(A)
in the matter preceding subclause (I), by striking “90 days” both places it appears and inserting “180 days”;
(B)
in subclause (I)—
(i)
by striking “may” and inserting “shall”; and
(ii)
by striking “and” at the end;
(C)
in subclause (II), by striking the period at the end and inserting a semicolon and “and”; and
(D)
by adding at the end the following:

“(III) an employer that violates subparagraph (A) of such paragraph shall be liable to the employees harmed by such violations for lost wages and benefits.”

(4)
in clause (iv)—
(A)
by inserting “to take, fail to take, or threaten to take or fail to take, a personnel action, or” before “to intimidate”;
(B)
by inserting “(I)” after “(iv)”; and
(C)
by adding at the end the following:

“(II) An employer that violates this clause shall be liable to the employees harmed by such violation for lost wages and benefits.”

(5)
in clause (vi)—
(A)
by amending subclause (I) to read as follows:

“(I) It is a violation of this clause for an employer who has filed an application under this subsection—

“(aa) to require an H–1B nonimmigrant to pay a penalty for ceasing employment with the employer prior to a date agreed to by the nonimmigrant and the employer (the Secretary shall determine whether a required payment is a penalty, and not liquidated damages, pursuant to relevant State law); and

“(bb) to fail to offer to an H–1B nonimmigrant, during the nonimmigrant's period of authorized employment, on the same basis, and in accordance with the same criteria, as the employer offers to United States workers, benefits and eligibility for benefits, including—

“(AA) the opportunity to participate in health, life, disability, and other insurance plans;

“(BB) the opportunity to participate in retirement and savings plans; and

“(CC) cash bonuses and noncash compensation, such as stock options (whether or not based on performance).”

(B)
in subclause (III), by striking “$1,000” and inserting “$2,000”.

Sec. 113 Waiver requirements

(a)
In general— Subparagraph (E) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended to read as follows:

“(E)

“(i) The Secretary of Labor may waive the prohibition in paragraph (1)(F) if the Secretary determines that the employer seeking the waiver has established that—

“(I) the employer with whom the H–1B nonimmigrant would be placed has not displaced, and does not intend to displace, a United States worker employed by the employer within the period beginning 180 days before and ending 180 days after the date of the placement of the nonimmigrant with the employer;

“(II) the H–1B nonimmigrant will not be controlled and supervised principally by the employer with whom the H–1B nonimmigrant would be placed; and

“(III) the placement of the H–1B nonimmigrant is not essentially an arrangement to provide labor for hire for the employer with whom the H–1B nonimmigrant will be placed.

“(ii) The Secretary shall grant or deny a waiver under this subparagraph not later than 7 days after the Secretary receives the application for such waiver.”

(b)
Requirement for rules—
(1)
Rules for waivers— The Secretary of Labor shall promulgate rules, after notice and a period for comment, for an employer to apply for a waiver under subparagraph (E) of section 212(n)(2) of such Act, as amended by subsection (a).
(2)
Requirement for publication— The Secretary of Labor shall submit to Congress and publish in the Federal Register and other appropriate media a notice of the date that rules required by paragraph (1) are published.

Sec. 114 Initiation of investigations

Subparagraph (G) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended—
(1)
in clause (i), by striking “if the Secretary” and all that follows and inserting “with regard to the employer's compliance with the requirements of this subsection.”;
(2)
in clause (ii), by striking “and whose identity” and all that follows through “failure or failures.” and inserting “the Secretary of Labor may conduct an investigation into the employer's compliance with the requirements of this subsection.”;
(3)
in clause (iii), by striking the last sentence;
(4)
by striking clauses (iv) and (v);
(5)
by redesignating clauses (vi), (vii), and (viii) as clauses (iv), (v), and (vi), respectively;
(6)
in clause (iv), as so redesignated, by striking “meet a condition described in clause (ii), unless the Secretary of Labor receives the information not later than 12 months” and inserting “comply with the requirements under this subsection, unless the Secretary of Labor receives the information not later than 24 months”;
(7)
by amending clause (v), as so redesignated, to read as follows:

“(v) The Secretary of Labor shall provide notice to an employer of the intent to conduct an investigation. The notice shall be provided in such a manner, and shall contain sufficient detail, to permit the employer to respond to the allegations before an investigation is commenced. The Secretary is not required to comply with this clause if the Secretary determines that such compliance would interfere with an effort by the Secretary to investigate or secure compliance by the employer with the requirements of this subsection. A determination by the Secretary under this clause shall not be subject to judicial review.”

(8)
in clause (vi), as so redesignated, by striking “An investigation” and all that follows through “the determination.” and inserting “If the Secretary of Labor, after an investigation under clause (i) or (ii), determines that a reasonable basis exists to make a finding that the employer has failed to comply with the requirements under this subsection, the Secretary shall provide interested parties with notice of such determination and an opportunity for a hearing in accordance with section 556 of title 5, United States Code, not later than 120 days after the date of such determination.”; and
(9)
by adding at the end the following:

“(vii) If the Secretary of Labor, after a hearing, finds a reasonable basis to believe that the employer has violated the requirements under this subsection, the Secretary shall impose a penalty under subparagraph (C).”

Sec. 115 Information sharing

Subparagraph (H) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended to read as follows:

“(H) The Director of United States Citizenship and Immigration Services shall provide the Secretary of Labor with any information contained in the materials submitted by employers of H–1B nonimmigrants as part of the adjudication process that indicates that the employer is not complying with visa program requirements for H–1B nonimmigrants. The Secretary may initiate and conduct an investigation and hearing under this paragraph after receiving information of noncompliance under this subparagraph.”

Sec. 116 Conforming amendment

Subparagraph (F) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended by striking “The preceding sentence shall apply to an employer regardless of whether or not the employer is an H–1B-dependent employer.”.

C Other protections

Sec. 121 Posting available positions through the Department of Labor

(a)
Department of Labor website— Paragraph (3) of section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)) is amended to read as follows:

“(3)

“(A) Not later than 90 days after the date of the enactment of the H–1B and L–1 Visa Reform Act of 2013, the Secretary of Labor shall establish a searchable Internet website for posting positions as required by paragraph (1)(C). Such website shall be available to the public without charge.

“(B) The Secretary may work with private companies or nonprofit organizations to develop and operate the Internet website described in subparagraph (A).

“(C) The Secretary may promulgate rules, after notice and a period for comment, to carry out the requirements of this paragraph.”

(b)
Requirement for publication— The Secretary of Labor shall submit to Congress and publish in the Federal Register and other appropriate media a notice of the date that the Internet website required by paragraph (3) of section 212(n) of such Act, as amended by subsection (a), will be operational.
(c)
Application— The amendments made by subsection (a) shall apply to an application filed on or after the date that is 30 days after the date described in subsection (b).

Sec. 122 H–1B government authority and requirements

(a)
Immigration documents— Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following:

“(m) Employer To provide immigration paperwork exchanged with Federal agencies—Not later than 21 business days after receiving a written request from a former, current, or future employee or beneficiary, an employer shall provide such employee or beneficiary with the original (or a certified copy of the original) of all petitions, notices, and other written communication exchanged between the employer and the Department of Labor, the Department of Homeland Security, or any other Federal agency or department that is related to an immigrant or nonimmigrant petition filed by the employer for such employee or beneficiary.”

(b)
Report on job classification and wage determinations— Not later than 1 year after the date of the enactment of this Act, the Comptroller General of the United States shall prepare a report analyzing the accuracy and effectiveness of the Secretary of Labor’s current job classification and wage determination system. The report shall—
(1)
specifically address whether the systems in place accurately reflect the complexity of current job types as well as geographic wage differences; and
(2)
make recommendations concerning necessary updates and modifications.

Sec. 123 Requirements for information for H–1B and L–1 nonimmigrants

Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) is amended by adding at the end the following:

“(s) Requirements for information for H–1B and L–1 nonimmigrants

“(1) In general—Upon issuing a visa to an applicant for nonimmigrant status pursuant to subparagraph (H)(i)(b) or (L) of section 101(a)(15) who is outside the United States, the issuing office shall provide the applicant with—

“(A) a brochure outlining the obligations of the applicant’s employer and the rights of the applicant with regard to employment under Federal law, including labor and wage protections;

“(B) the contact information for appropriate Federal agencies or departments that offer additional information or assistance in clarifying such obligations and rights; and

“(C) a copy of the application submitted for the nonimmigrant under section 212(n) or the petition submitted for the nonimmigrant under subsection (c)(2)(A), as appropriate.

“(2) Applicants inside the United States—Upon the issuance of a visa to an applicant referred to in paragraph (1) who is inside the United States, the issuing officer of the Department of Homeland Security shall provide the applicant with the material described in clauses (i), (ii), and (iii) of subparagraph (A).”

Sec. 124 Additional Department of Labor employees

(a)
In general— The Secretary of Labor is authorized to hire 200 additional employees to administer, oversee, investigate, and enforce programs involving nonimmigrant employees described in section 101(a)(15)(H)(i)(B).
(b)
Authorization of appropriations— There are authorized to be appropriated such sums as may be necessary to carry out this section.

Sec. 125 Technical correction

Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) is amended by redesignating the second subsection (t), as added by section 1(b)(2)(B) of the Act entitled “An Act to amend and extend the Irish Peace Process Cultural and Training Program Act of 1998” (Public Law 108–449; 118 Stat. 3470), as subsection (u).

Sec. 126 Application

Except as specifically otherwise provided, the amendments made by this title shall apply to applications filed on or after the date of the enactment of this Act.